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Legal


Below are selected “Ask MRSC” inquiries we have received from local governments throughout Washington State related to legal issues. Click on any question to see the answer.

These questions are for educational purposes only. All questions and answers have been edited and adapted for posting to the MRSC website, and all identifying information, including the inquirer’s name and agency name, has been removed.


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If our town would like to sell a piece of property that was previously leased to a business and not part of a utility, do we have to do a bidding process? I have looked at some other town's ordinances and I am finding conflicting information.
Reviewed: September 2022

It does not surprise me that you are seeing different approaches in different towns’ ordinances. This is because town councils have broad authority to dispose of real estate in any commercially reasonably way (RCW 35.27.010 and RCW 35.27.370(2)). This includes listing for sale, putting it out to auction, direct or private negotiation with an interested buyer, etc. We have some best practices tips available on our page Surplus City or Town Property. An important tip is to get an appraisal of the property so you know what a fair market value is and the value you should receive in exchange for the property. An auditor will be looking for whether the town has adopted policies or procedures, and whether those policies or procedures were followed. We encourage cities and towns to adopt surplus property disposal policies and then follow them, but in their absence, you can always get authorization from your town council for this specific sale and your council can direct you how to go about selling this particular parcel.

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We have a request for a former employee’s personnel file. In the file is a copy of the employee's police officer identification card. On the back of that card are the left and right index fingerprints. Is there an exemption for the fingerprints?  
Reviewed: September 2022

Biometric data is exempt from disclosure under the PRA. See RCW 40.26.020 (5): “Biometric identifiers may not be disclosed under the public records act, chapter 42.56 RCW.”

Per RCW 40.26.020(7)(b):

"Biometric identifier" means any information, regardless of how it is captured, converted, stored, or shared, based on an individual's retina or iris scan, fingerprint, voiceprint, DNA, or scan of hand or face geometry, except when such information is derived from: (i) Writing samples, written signatures, photographs, human biological samples used for valid scientific testing or screening, demographic data, tattoo descriptions, or physical descriptions such as height, weight, hair color, or eye color […].

If you have not asserted this exemption before, I encourage you to review it with your city attorney.

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Is there a comprehensive resource for determining applicable exemptions under the Public Records Act (PRA)? 
Reviewed: August 2022

Here are several good resources:

Questions regarding exemptions and appropriate redactions related to specific records should be discussed with your agency attorney.

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Does HB 1630 — the new law prohibiting open carry of firearms and other weapons within certain municipal buildings — apply to special purpose districts like fire, hospital or port districts?
Reviewed: August 2022

Special purpose districts (SPDs) like ports and fire and hospital districts are defined as "municipalities" or "municipal corporations" in their enabling legislation. HB 1630, codified at RCW 9.41.305, prohibits open carry in:

City, town, county, or other municipality buildings used in connection with meetings of the governing body of the city, town, county, or other municipality, or any location of a public meeting or hearing of the governing body of a city, town, county, or other municipality during the hearing or meeting.

Therefore, SPDs that are defined as municipalities are subject to the statutory language. For more on this new law, see the section on “Open Carry of Firearms” in the MRSC blog Regulating Firearms in Washington State.

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After a recorded public meeting, is there a requirement for how quickly we need to make the recording available to the public? And for how long must we make it available online?
Reviewed: August 2022

There is not a specific requirement for how quickly a governing body should make recordings of public meetings available to the public. There is also no requirement to make recordings of public meetings. However, pursuant to recent changes to the Open Public Meetings Act (OPMA), recordings are now “encouraged,” and agencies are also encouraged to make meeting recordings available online. RCW 42.30.220 now provides:

(1) Public agencies are encouraged to make an audio or video recording of, or to provide an online streaming option for, all regular meetings of its governing body, and to make recordings of these meetings available online for a minimum of six months.

(2) This section does not alter a local government's recordkeeping requirements under chapter 42.56 RCW.

This new RCW, effective June 9, 2022, does not indicate how soon an agency should make recordings available online, but includes the guideline for posting them “a minimum of six months.” The statute clarifies that the Public Records Act (PRA) still applies. Further, records retention schedules should be reviewed before any recordings are discarded.

Your agency could adopt a policy with guidelines about when to post meeting recordings, taking into account the resources involved in doing so. A reasonable time may differ depending on the agency in question. If your agency has decided to make audio and/or video recordings of your meetings, then you might want to look at the requirement for meeting minutes to be “promptly recorded.” There is not a specific definition of “promptly.” RCW 42.30.035 provides:

The minutes of all regular and special meetings except executive sessions of such boards, commissions, agencies or authorities shall be promptly recorded and such records shall be open to public inspection.

For more information about the 2022 changes to the OPMA, here are links to recent MRSC blogs: The OPMA Gets an Update from the Legislature and HB 1329: Answers to Your OPMA Questions.

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If an employee posts a city job opening on their personal LinkedIn profile, is this considered a public record?  
Reviewed: July 2022

Agency-related records on a staff member’s personal LinkedIn profile can be analyzed under the “scope of employment” test. We have an FAQ on our PRA website that addresses this:

Essentially, if the employee on their own initiative decides to post a city job posting on their personal LinkedIn, that is not a public record (it is not within their “scope of employment”). However, if the city manager/mayor or the department director tells (or maybe simply encourages) the employee to post the job posting on their personal LinkedIn, it would be a public record since the agency is directing it.

For hiring tips, see our recent blog post: Recruiting for Local Government Positions.

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Are there special procedures to dispose of a city’s surplus firearms?  
Reviewed: May 2022

Firearms purchased and used by a city police department may be disposed of in the usual way a city surpluses other city property it no longer needs, with some caveats noted below. One option would be to sell the firearms by auction or trade to licensed dealers.

We recommend looking to see if the city has adopted procedures for surplussing city property (either in its code or policies). If it has, then those procedures should be followed. And here is a link to the MRSC webpage on the Surplus City or Town Property that includes practice tips and sample procedures.

Please be aware that some firearms that may be lawful for law enforcement officers to possess, may otherwise be illegal. See RCW 9.41.190. In that case, an option might be to sell them to another police agency or perhaps to disassemble the weapons and sell for parts.

Finally, firearms that are seized and forfeited are treated differently under RCW 9.41.098 (see in particular subsection (2)(a)) and RCW Ch. 63.32 (unclaimed). If you are dealing with forfeited or seized firearms, these provisions should be reviewed carefully.

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We have local ribbon cuttings where city council is invited. May a quorum or more of the council attend without this becoming a meeting subject to the OPMA?
Reviewed: May 2022

A quorum or more of the council can attend a ribbon cutting ceremony without implicating the OPMA, provided no city business is transacted. See RCW 42.30.070 and this FAQ on our website: Are social gatherings or other organizations' meetings subject to the OPMA?

Two things to consider for social functions: a) If the invite is sent to all council members at the city you may want to consider posting a notice somewhere that council has been invited, a majority/quorum of the council may attend, and that they will not be conducting city business at the event; b) Your city attorney may want to conduct some refresher training on the OPMA.

We suggest that if a majority does attend a social event, they should take care to not all sit together (or in a quorum-sized group) and that they make sure to keep the event social, and not discuss city business among themselves while at the event.

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What is the city's obligation to retain voicemails?
Reviewed: April 2022

If you do not convert the voicemail to transcription, the retention period will depend on the content of the call. If you do convert, then we think the retention schedule in CORE DAN GS2016-009 (page 162) would apply. Once the agency has confirmed transcription, it may destroy the recording. The agency will want to be sure it has captured all the relevant data – to and from numbers, time, length, etc.

The state archivist has the following guidance on voicemails: Managing Voicemails - Washington State Archives - WA Secretary of State

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The city is receiving extensive public records requests from an individual requester that has the potential to interfere with city operations. What are some strategies for dealing with such requests?
Reviewed: March 2022

Here are a few blog articles on dealing with large public records requests:

  • Please Stop: Handling Public Requests (Oct 15, 2019) - Municipal employees sometimes must deal with a variety of requests, and some can be quite challenging. This article looks at what local governments can and cannot broadly do in terms of responding to large public records requests and complaints.
  • BIG Public Records Requests (Mar 3, 2015) - How can local governments respond to large public records requests? In light of some recent public records requests that have made the news, this blog post discusses overbroad requests, identifiable records, and the ability to provide public records in installments.
  • Handling Vague and Complex Public Records Requests: Developing Your Plan of Attack (Feb 28, 2013) - Have you ever seen a public records request that makes you scratch your head and think, "How am I going to respond to that?" Two public records officers from Snohomish County weigh in on strategies for dealing with seemingly impossible requests that are either too vague or too complex.

MRSC’s Public Records Act Basics page has a section with examples of public records policies, including policies that limit the amount of staff time spent on responding.

Finally, there is authority under the PRA for an agency to close a request if a requester fails to review or pay applicable copy charges for requested records. See RCW 42.56.120(4) and WAC 44-14-040 (Attorney General Model Rules).

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Our city initially banned cannabis sales when it was legalized in WA State. My understanding is that means we cannot receive any tax revenue from cannabis sales. If our city lifted the ban, would we be eligible to receive revenue from state sales, even if we did NOT have a cannabis business in our city? 
Reviewed: January 2022

The marijuana excise tax has two components- the per capita share and the retail share. The per capita share is a portion that is distributed to all cities and counties that do not prohibit marijuana businesses. The retail share is distributed to all cities and counties where marijuana retailers are located. If the city were to allow marijuana businesses, it would qualify for the per capita share. If it had any marijuana retailers, it would also qualify for the retail share. For more information on the marijuana excise tax, we would recommend reviewing our Revenue Guide for Washington Cities and Towns, page 133.

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The entire Council has been invited to a community meeting on homelessness. May a quorum of the council attend?
Reviewed: November 2021

Generally, the OPMA does not apply to a quorum of members attending a meeting not called by their governing body unless “action” is taken, which can include taking public testimony. AGO 2006 No. 6. We think there is a fundamental difference between 1) the council attending a meeting and passively receiving information as mere audience members, and 2) the council attending what is essentially a public listening session. Depending on the specific facts of the meeting, how the session is structured, and whether speakers address their comments directly to the councilmembers, it does run the risk of becoming “public testimony.” At the least, it runs the risk of “appearing” to be a violation of the OPMA even if a court ultimately finds that the facts of the session show there wasn’t technically a violation.

The conservative approach would be to have less than a quorum of the council attend the meeting and report back in a regular open meeting of the council. Alternatively, the community meeting could be noticed as a “special meeting” during which the council will take public testimony on the issue of homelessness.

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What is the process for lifting a local ban on marijuana retail establishments?
Reviewed: November 2021

The process will depend on how the ban was put into place. If it is part of the zoning or development code, then the city or another party will need to initiate the code amendment process outlined in the local code. Here are some examples of cities that have lifted bans on marijuana-related businesses:

  • Fife Ordinance No. 1957 – In 2017, Fife lifted its marijuana ban on production, processing and retail sales
  • Spokane Valley Ordinance No. 19-011 – In 2019, Spokane Valley amended its municipal code to allow licensed marijuana transporters
  • University Place Ordinance 685 – In 2017, University Place amended its code to make changes if the Council chooses to allow such uses in the future
  • Yakima City Council Meeting Packet - May 17, 2016 – In 2016, Yakima passed a Resolution declaring intent to lift its ban on recreational and medical marijuana production, processing, and directing Planning Commission to develop land use regulations pertaining to locations and regulation of such uses (pg. 100)

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How does a town dispose of property that has no monetary value (e.g., carpet remnants, broken office equipment, and obsolete computer equipment)?
Reviewed: September 2021

As a matter of procedure, the council should list and declare these items surplus (usually done through a resolution), and then indicate that the items have de minimis or no monetary value (ideally with some description evidencing this, e.g., outdated, obsolete, broken, etc.). The property could then be destroyed or otherwise disposed of. If your town has adopted procedures for surplusing property, those should be followed. Here are some examples of resolutions that include items of de minimis or no monetary value:

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Can a city require businesses to provide proof of insurance before issuing a business license?
Reviewed: September 2021

The State adopted legislation in 2017 imposing requirements on cities with respect to the issuance of general business licenses. Our City Business License and Fees webpage has an overview of the requirements. In particular, RCW 35.90.080 and 35.90.090 require that cities include certain mandatory provisions in their business license regulations. MRSC has the model ordinance language that addresses the state requirements here.

So the first thing to check is whether the City amended its business license regulations in response to these requirements. If not, then RCW 35.90.090 prevents enforcement of the business license regulations.

Cities that impose a general business license must adopt the mandatory provisions of the model ordinance as provided in RCW 35.90.080 by January 1, 2019. A city that has not complied with the requirements of this section by January 1, 2019, may not enforce its general business licensing requirements on any person until the date that the mandatory provisions of the model ordinance take effect within the city.

Even if the City did amend its business license regulations in response to RCW 35.90.080, we don’t think it can require all business license applicants to provide proof of insurance. The decision of whether to buy insurance, what type of insurance, and what policy limits, is generally a business decision. And it is a decision that will vary widely depending on the size and type of business.

Some cities require certain types of businesses to obtain additional regulatory licenses and in some cases may require proof of insurance from a certain type of business. But that is different from the general business license requirements imposed on all businesses doing business within the City. We have more information on that at the webpage linked above.

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Who makes the decision that a member of a governing body cannot participate in a quasi-judicial matter; the member, or can the governing body disqualify them?
Reviewed: September 2021

MRSC has previously said that under RCW 42.36.080, the decision/responsibility to recuse under the appearance of fairness doctrine is the member’s. However, for first class and code cities and charter counties, state law may give the governing body the inherent authority to prohibit a member from participating. MRSC has also said that a governing body may be able to adopt a rule that would allow them to disqualify a member from participating, but we aren't aware of any agency that had done so. Such a rule (or other decision to disqualify) might be upheld since the remedy for a violation of Chapter 42.36 RCW is that the body has to conduct the hearing again without the participation of the disqualified member.

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Is a child victim’s identity still protected once they reach adulthood?
Reviewed: July 2021

MRSC’s position is that the protections for juvenile identifying information in RCW 10.97.130, RCW 7.69A.030, and RCW 42.56.240(5) continue after the juvenile turns 18.

However, in all matters related to the release or withholding of public records (or information within public records), we recommend you consult with your agency attorney.

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Is there a new law requiring disclosure of competitive bids received by a local government agency?
Reviewed: June 2021

In 2019 the legislature passed a law requiring copies of competitive bids to be provided promptly (within two days of competitive bid opening) upon request. This may be the recent change you mentioned. This legislation was not part of the Public Records Act (PRA), but is within the public works chapter:

RCW 39.04.105: A new provision is added requiring municipalities to, when requested by a bidder, provide copies of bids received within two days of a competitive bid opening. An award cannot occur until at least two full business days after such documents have been provided.

Under the PRA, bid proposals and contracts would be public records subject to disclosure, although there may be some redactions required if there is protected financial information such as bank account numbers or dates of birth, SSNs, etc.

We recommend consulting with your agency’s legal counsel regarding any specific request for records or information.

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Do we need to keep the (stamped received/time) envelopes that bids and statements of qualifications come in? Do we need to keep a paper copy of all bids/qualifications received, or is an electronic record OK? Or is just a paper copy of the successful bid OK?
Reviewed: June 2021

Yes, you should keep the envelopes that bids and statements of qualifications come in. They reflect the postage date which may be important in case of a dispute. The retention schedule for bid documents (both successful and unsuccessful) are on page 110 of the local government records retention schedule, CORE. Unsuccessful bid documentation can be destroyed after 4 years. Successful bid documentation can be destroyed 6 years after completion of the contract.

If you convert all your documentation to digital form, you do NOT need to keep the original paper version. The Archivist has guidance here on how to Go Paperless ("Scan & Toss").

You should work with your public records officer before destroying and tossing any records that have a retention value.

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Are preliminary site plans that are pending approval subject to public records disclosure? Does a site plan pending approval qualify as a deliberative process and draft under RCW 42.56.280?
Reviewed: May 2021

MRSC has consistently advised that for the exemption in RCW 42.56.280 to apply, the draft documents must discuss opinions or the formulation of policy. This exemption does not generally apply to documents submitted as part of the permitting process. We discuss the “draft” and “deliberative process” exemption in our FAQ: Are draft documents exempt from disclosure?, in this blog article, and our MRSC Public Records Act publication, pp. 22-23. To rely on this exemption, an agency must show:

  • that the records contain pre-decisional 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 within an agency and the exemption disappears once the agency takes final action on the issue.

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Can the chair of a council advisory board discuss ideas via e-mail between monthly meetings among the members without taking any action until we get to the meetings, without such discussions becoming prohibited serial meetings?
Reviewed: March 2021

A threshold question is whether the committee is subject to the Open Public Meetings Act (OPMA). If the committee is purely advisory, not acting “on behalf of the council,” not taking public testimony, and their decision is not a required predicate to council action, then the committee is likely not subject to the OPMA. This is a very case-by-case, fact-based analysis that should be performed by your agency’s attorney. It also matters how the committee was formed – if the enabling legislation says it’s covered by the OPMA, then it is. If there is any question whether the OPMA applies or if the city chooses, the conservative approach is to go ahead and comply with the OPMA.

Assuming that the committee is subject to the OPMA, we would caution against email discussions among the members of the board between meetings. Discussions are considered “action” under the OPMA (“final action” is making a collective decision, i.e., voting). Actions must occur at meetings open to the public. Discussions among less than a quorum of members is OK, but be careful that these do not become a serial meeting. Here is a recent blog post about serial meetings.

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How often are elected officials like council and board members required to do the OPMA training? Does the staff need to do the training too, or just the council and mayor?
Reviewed: March 2021

State law requires all members of the governing body to complete open government training no later than 90 days after taking the oath of office or assuming their duties, with a refresher course at least every four years. RCW 42.30.205. Additionally, all elected officials as well as the agency’s public records officer (PRO) are required to take training on the Public Records Act and records retention requirements. RCW 42.56.150 and 42.56.152. Other staff beyond the public records officer are not required to take the trainings pursuant to these provisions.

MRSC and AWC have an online e-training (select “Open Public Meetings Act eLearning” and “Public Records Act eLearning.”) for both the OPMA and PRA that meets the above requirements. For more information, see the Washington State Attorney General's webpage on Open Government Training. See also the “Training Opportunities” section on our Open Public Meetings Act page, as well as the blog article Explaining the Open Government Trainings Act.

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Is a resignation letter disclosable as a public record?
Reviewed: January 2021

Yes, a resignation letter is a public record that is subject to disclosure under the Public Records Act. There is no general exemption that would allow the city to withhold the letter. It’s possible there would be personal information exempt based on RCW 42.56.250(4) or potentially a privacy exemption under RCW 42.56.230 if there are unsubstantiated allegations included in the letter. You will want to review the content of any requested letter to see if there is any information that might fall within such an exemption.

The city could also provide third party notice to the former employee who wrote the letter and/or anyone mentioned within the letter pursuant to RCW 42.56.540, if it felt such individuals would potentially want to seek an injunction preventing the letter’s release.

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Are Lodging Tax Advisory Committee (LTAC) grant applications a public record?
Reviewed: January 2021

Yes, Lodging Tax Advisory Committee (LTAC) grant applications are considered public records and we are not aware of any exemption within the Public Records Act (PRA) that would prevent their disclosure. An LTAC is an advisory body to the city council, created by statute under RCW 67.28.1817(1). MRSC regards the LTAC as a subagency of the public agency city under RCW 42.30.020 (1)(c). As a subagency, LTAC’s records, including grant applications submitted to LTAC for consideration, are considered public records under the PRA. As you know the definition of public record is extremely broad, encompassing essentially all records of the agency, including their subagencies and committees.

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Can a conversation between an employee and a commissioner be recorded outside of a public meeting without advising the other person?
Reviewed: January 2021

There is a provision in state law that addresses the recording of “private conversations.” RCW 9.73.030(1)(b) (the ‘Privacy Act’) makes it unlawful to record a “private conversation…without first obtaining the consent of all persons engaged in the conversation.”

The nature and location of the meeting or conversation affects whether it is a private conversation requiring consent to record. The key consideration is whether a person has an expectation of privacy in a given situation. If the conversation was held in a public place where there is no reasonable expectation of privacy (such as in the lobby of city hall, the city council meeting chambers before a public meeting, or at the permit counter), then it is possible the meeting is not considered “private.” But, if the discussion or meeting was held in a private area, such as an internal conference room not open to the public, then all participants would need to consent to the recording. Under RCW 9.73.030(3), if an individual announces to the other party that he/she is recording the conversation (and that announcement is also recorded), consent is considered to be obtained.

Under the Open Public Meetings Act (OPMA), a municipality cannot prohibit the recording of a public meeting subject to the OPMA. See RCW 42.30.040 and AGO 1998 No. 15.

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Who is required to comply with ADA regulations related to accessible facilities? Do the number of employees an agency has need to be over a certain amount?
Reviewed: November 2020

There is not a threshold number of employees for the ADA accessibility rules for public facilities to apply. Here are some resources you may find helpful:

Several ADA FAQs regarding State and Local Governments

Q. Does title II cover a public entity's employment policies and practices?
A. Yes. Title II prohibits all public entities, regardless of the size of their work force, from discriminating in employment against qualified individuals with disabilities. In addition to title II's employment coverage, title I of the ADA and section 504 of the Rehabilitation Act of 1973 prohibit employment discrimination against qualified individuals with disabilities by certain public entities.

Q. What changes must a public entity make to its existing facilities to make them accessible?
A. A public entity must ensure that individuals with disabilities are not excluded from services, programs, and activities because existing buildings are inaccessible. A State or local government's programs, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities. This standard, known as "program accessibility," applies to facilities of a public entity that existed on January 26, 1992. Public entities do not necessarily have to make each of their existing facilities accessible. They may provide program accessibility by a number of methods including alteration of existing facilities, acquisition or construction of additional facilities, relocation of a service or program to an accessible facility, or provision of services at alternate accessible sites.

Q. What does title II require for new construction and alterations?
A. The ADA requires that all new buildings constructed by a State or local government be accessible. In addition, when a State or local government undertakes alterations to a building, it must make the altered portions accessible.

Q. How will a state or local government know that a new building is accessible?
A. A state or local government will be in compliance with the ADA for new construction and alterations if it follows either of two accessibility standards. It can choose either the Uniform Federal Accessibility Standards or the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities, which is the standard that must be used for public accommodations and commercial facilities under title III of the ADA. If the state or local government chooses the ADA Accessibility Guidelines, it is not entitled to the elevator exemption (which permits certain private buildings under three stories or under 3,000 square feet per floor to be constructed without an elevator).

Here is a link to MRSC’s Americans with Disabilities Act page.

For more specific questions, there is an ADA Hotline number staffed by Department of Justice accessibility experts (800-514-0301). The ADA has a website with Information and Technical Assistance at www.ada.gov.

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If a staff member installs and uses a cloud-based communications tool like Microsoft Teams on their personal cell phone, is it possible that their phone would be subject to a search for information, in response to a public records request?
Reviewed: September 2020

Agencies are required to conduct a reasonable search of the likely locations for responsive records. If you are confident that nothing is stored on the local device, then the personal device would be an unlikely location to find responsive records.

Note that sometimes users will opt to download records to the local device. The PRO will still need to coordinate with the staffer and potentially have the staffer search their own device for responsive records. See the section on “Searching for Records on Personal Devices” our Searching and Producing Public Records topic page.

Also, you would want to confirm that the personal device was set up so that it is in fact fully synced with the remote server. For example, the Outlook app for iPhone can be configured so that changes made in the local view are not necessarily the same as the desktop view (like “mark as unread”, etc.).

It is possible that some sort of transitory/temporary file is stored on the local device, but this data is of a temporary nature and usually overwrites very quickly and is not generally accessible by reasonable means (but you will want to confirm this with Microsoft.) Keep in mind that metadata only needs to be produced if specifically requested, and only if technically feasible and financially reasonable for the agency to do so.

You will want to fully document your decision-making process, evidence that all records are actually stored on the remote server such that comprehensive searching of a personal devices by the staff member is probably not necessary, as well as any configuration requirements. Make sure the public records officer has a copy of that documentation.

As an aside, we here at MRSC have been looking into using Microsoft Teams (we are currently on the older Office 365 suite) precisely because the remote server captures all the communications and makes retention and search of such records much more centralized.

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What are the requirements for the retention of payroll records?
Reviewed: July 2020

The Washington State Archivist and the Local Records Committee are authorized and directed by statute (RCW 40.14.070) to issue retention schedules. The local government common records retention schedule (CORE) is the relevant guidance for local government records.

Payroll records are tricky because different retention requirements apply to different types of payroll information. In particular, information relating to eligibility for retirement benefits can have a very long retention period. The State Department of Retirement Services may need such records many years later to determine a former employee’s eligibility for retirement benefits.

Fortunately, in 2017, the Washington State Archivist issued a training video that addresses some of the retention issues regarding payroll records. The video explains what types of payroll information are necessary for verifying retirement eligibility.

The CORE items that relate to payroll include:

Some agencies may choose to retain all of their payroll records for a long period instead of just the records needed to verify eligibility for retirement benefits.

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Is it a conflict of interest for a councilmember to be appointed to the planning commission?
Reviewed: July 2020

We do not think a councilmember should also serve on the planning commission because of the common law doctrine of Incompatible Offices. The doctrine provides that the same person cannot hold two public offices at the same time if the offices are incompatible. Although there is not a court opinion or Attorney General’s guidance evaluating the compatibility of these two particular offices, MRSC takes the position that these public offices are incompatible. This is in part because a planning commission makes recommendations to a city council, and a person serving on both bodies would be in a position to approve his or her own recommendations. Here is an excerpt from our Code City Handbook (p. 40) about this issue:

  • Elective officers of the city should not assume additional municipal duties that are incompatible with those of their elective office. One practical test of incompatibility is whether one position is subordinate to the other in some of its important and principal duties. Under common law, one person cannot be both master and servant or principal and subordinate.

In AGO 2016 No. 7, the Attorney General’s office looked at the offices of planning commissioner and school board member, and concluded the offices were likely incompatible, although the AG noted this would be “an extremely close call” and “a court could reasonably reach the opposite conclusion.” The opinion provides, in part:

  • We also considered that planning commissioners act in an advisory role, with final decisions regarding land use matters entrusted to the city council. RCW 35.63.100. The advisory nature of the body does not change our analysis because, as noted, the commission “may act as the research and fact-finding agency of the municipality.” RCW 35.63.060. Its role includes making inquiries, investigations, and surveys concerning land use resources in the county, assembling and analyzing data, and working with other agencies on land use planning. RCW 35.63.060. In some jurisdictions they also perform a quasi-judicial function. RCW 35.63.130.

In conclusion, we do not think a councilmember may also serve on your planning commission.

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Must a city continue to compile records responsive to a request through the date of fulfillment of the request, or does the date of the submission of the records request constitute a definitive cut-off for the date range of the records that must be produced?
Reviewed: June 2020

The date the records request is received is controlling, not the date of fulfillment and/or closure of a records request. There is no requirement in the Public Records Act (PRA) to provide ongoing supplements to records requests that have already been received and are being completed. In general, the public agency complies with a public records request with responsive records that existed as of the date of the request.

The State Supreme Court in Gipson v. Snohomish County held that an agency “determines any applicable exemptions at the time the request is received,” and doesn’t have a duty to revisit records withheld or redacted in previous installments to determine whether an exemption no longer applies. This 2019 case confirmed that there is not an ongoing duty to review future records created after a public records request is received. A requester has the obligation to submit another request after more records might have been created. It does not matter that the records request under review has not yet been closed.

Here is a link to a recent MRSC blog article New Developments in PRA Land (Dec 09, 2019) which includes an overview of Gipson v. Snohomish County.

Additional resources include the Washington State Attorney General’s Office’s Open Government Resource Manual and Local Government Consultation Program.

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We are hosting a parliamentary procedure training for our member cities’ newly elected officials (and current elected officials). If a city sends a quorum to attend the training, do they need to publish it as a special meeting?
Reviewed: May 2020

Not necessarily.

So long as the quorum of councilmembers does not conduct city business together while at the training, they may attend without violating the Open Public Meetings Act (OPMA). The OPMA provides, in relevant part, that it is not an OPMA violation “for a majority of the members of a governing body to travel together or gather for purposes other than a regular meeting or a special meeting as these terms are used in this chapter: PROVIDED, That they take no action as defined in this chapter.” RCW 42.30.070. The slightly tricky part is that the definition of “action” is so broad and includes “discussions.” See RCW 42.30.020(3).

To avoid an OPMA violation at the training, a quorum of the councilmembers should not discuss city business together. It is fine for the individual councilmembers to discuss city affairs with other attendees, but not with a quorum of their fellow city councilmembers. We also advise against a councilmember asking a city-business related question during any Q&A portion of the training when the other councilmembers are in attendance (because the other city councilmembers are now hearing about city business, which may qualify as a “discussion”).

A city can choose to mention the travel arrangements in the agenda or at a meeting prior to the training – just so the public knows that the councilmembers are travelling together and that they know of the restriction on discussing city business among themselves while traveling and at the training. There is no statutory requirement that the public be notified of the travel arrangements, but we think it is a good idea.

An attorney general opinion, AGO 2006 No. 6, provides similar advice.

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Are local government agencies required to have a list of PRA exemptions on their website pertaining to public records?
Reviewed: May 2020

RCW 42.56.070(2) requires you to “publish and maintain a current list containing every law, other than those listed in this chapter, that the agency believes exempts or prohibits disclosure of specific information or records of the agency. An agency's failure to list an exemption shall not affect the efficacy of any exemption.”

There is no requirement that you post that list on your website. You can just adopt the list as part of your public records policy. Many jurisdictions adopt exhibit C to MRSC’s Public Records Act publication – we update it at least once a year.

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Do general staff meeting agendas and notes need to be saved for public disclosure? No board members are involved in these meetings, only staff and management.
Reviewed: April 2020

The general staff meeting agendas must be saved for public disclosure. Records documenting meetings of agency staff must be retained for two years after the end of the calendar year in which they are created. If the agendas are no longer needed for agency business at the end of this period, they may then be destroyed. See p. 42, Local Government Common Records Retention Schedule (CORE) Version 4.0 (May 2017), Sec. 1.10, GS50-01-43 Rev. 2.

These agendas are “public records” under the Public Records Act (PRA), chapter 42.56 RCW, as they contain information that relates to the conduct of government, or the performance of any governmental or proprietary function. See RCW 42.56.010(3). As public records, they must be disclosed upon request, unless they fall under an exemption in the PRA. Exemptions are narrowly construed by the courts. See our Public Records Act topic page for additional information. Note that if an agency (or agency employee) keeps a record past the required time set forth in the retention schedule, and the agency receives a request for that record, the agency must disclose it. See RCW 42.56.100

The notes from these meetings may be a different story. Without having more information on the notes, it’s not possible for me to tell you with certainty whether an exemption applies, but it sounds like what you’re describing may be informal personal notes created by staff members at the meetings. If they are informal personal notes, they are not considered public records and the PRA does not apply to them. They may also be destroyed at an employee’s discretion.

In order to qualify as informal personal notes, they must have been created solely for the government employee’s convenience or to refresh the employee’s memory; maintained in a way indicating a private purpose; not circulated or intended for distribution within agency channels; not under agency control; and can be discarded at the writer's sole discretion. See Yacobellis v. Bellingham. MRSC has a helpful blog post concerning personal notes and the PRA.

However, if these notes are more akin to the official minutes of the meeting, then they are considered public records to which the PRA applies and must be treated identically to the meeting agendas as discussed above.

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I have a large Public Records Act (PRA) request for every internal investigation for our department for the last five years from a local attorney. Are there exemptions for investigations that are exonerated or not sustained? Is there any part of an internal investigation that is exempt or redactable? Or do they need to be given in their entirety without redaction?
Reviewed: April 2020

You will want to work closely with your city attorney to review this particular PRA request and the investigative documents requested. In general, the exemption status first depends on whether a criminal investigation is open or closed. Internal investigation files are not categorically exempt but certain records within these types of files may be exempt.

As explained on MRSC’s topic page Disclosure of Law Enforcement Investigative Records, the entire investigative file for an open criminal investigation is categorically exempt from disclosure under RCW 42.56.240(1), meaning that the entire file may be withheld. RCW 42.56.240(1) exempts “specific investigative records ... the nondisclosure of which is essential to effective law enforcement ...” Nondisclosure of open criminal investigative records is always presumed to be essential to effective law enforcement. See Sargent v. Seattle Police Department. While the court in the Sargent case did hold that open criminal investigations are categorically exempt, it also held that the categorical exemption does not automatically apply to open internal investigations (at pages 13-14 of the slip opinion).

For closed investigations, review whether RCW 42.56.240(1) applies. This statute exempts “specific investigative records … the nondisclosure of which is essential ... for the protection of any person's right to privacy.” RCW 42.56.050 states that a person’s right to privacy is violated only if disclosure of the information:

  1. Would be highly offensive to a reasonable person, and
  2. Is not of legitimate concern to the public.

Note also that internal investigations of higher-ranking officers are treated differently. There, even if the allegations are unsustained and highly offensive, the higher-ranking officer’s name must be provided since the legitimate public interest prevails – see City of Fife v. Hicks.

When determining what is highly offensive to a reasonable person, consider whether the person’s expectation of privacy is reasonable or whether there has been a clear, affirmative waiver of the right to privacy. See Bainbridge Island Police Guild v. City of Puyallup.

RCW 42.56.240(1) also exempts “specific investigative records … the nondisclosure of which is essential to effective law enforcement....” According to the Washington State Supreme Court, “This exemption is not limited in application to only when enforcement would cease to function were the documents in question disclosed.” See Koenig v. Thurston County (emphasis added). Rather, the legislature’s inclusion of the word “effective” in the exemption means that the focus is on whether disclosure would compromise the effectiveness of law enforcement.

If you have unsustained investigations, and if they appear likely to require disclosure, then there is also an option to provide third party notice to the officer involved who may then choose to seek a court order preventing disclosure.

For a summary of PRA laws relating to internal investigation files (and other police records), here are links to MRSC’s topic pages Disclosure of Law Enforcement Investigative Records, Common Prohibitions and Exemptions for Law Enforcement Records and Law Enforcement Records Tool Kit.

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Is there a recommendation on whether to keep public disclosure request records in paper format or in electronic format?
Reviewed: March 2020

There are no legal requirements in this regard. The “path of least resistance” would be to retain such records in their existing format for the applicable retention period. However, many agencies are trying to minimize their paper records and store records electronically. Washington State Archives has a webpage with publications and advice sheets for local governments—for example:

  1. Factors Affecting the Cost of Digitizing Paper Records
  2. Keep Electronic Records in Electronic Format
  3. What are the Leading Practices for Records Management and Retention?

Although maintaining records electronically is not identified as a “leading practice” in the third item listed above, storing records electronically makes it easier to meet several leading practices, such as “Records are Inventoried,” “Records are Organized” and “Disaster Preparedness.” Ultimately, the question of whether to convert paper records to electronic format is a policy and budgetary decision for your agency.

If your agency does consider converting paper records to an electric format, see the State Archive’s Scanning and Tossing paper for guidelines.

Note that an agency does not need to retain a separate set of the records provided in response to a Public Records Act request, however it is recommended to do so. The AGO model rules say the following regarding retention of records provided:

WAC 44-14-04006 Closing request and documenting compliance. (3) Retain copy of records provided. In 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. A growing number of requests are for a copy of the records provided to another requestor, which can easily be fulfilled if the agency retains a copy of the records provided to the first requestor. The copy of the records provided should be retained for the period of time consistent with the agency's retention schedules for records related to disclosure of documents.

See the Secretary of State’s Archives Division Website for the Local Government Common Records Retention schedule (CORE) to determine applicable retention periods.

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Are agency-related Facebook posts on a public employee's or official's personal Facebook account public records?
Reviewed: March 2020

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 County (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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We currently have 3 standing council committees, two of the committees have 2 members and 1 committee has 3 members. Is there a violation of the Open Public Meetings Act (OPMA) if 2 members talk to each other outside their regular council committee meeting about committee business?
Reviewed: February 2020

Whether or not two councilmembers should talk to each other about their committee business outside of a public meeting depends on the purpose of the committee. The Open Public Meetings Act (OPMA), chapter 42.23 RCW, applies when a quorum of the governing body meets. So, unless there are enough councilmembers on the committee to make a quorum, the OPMA probably does not apply. There are times when a meeting of a committee or subcommittee of a governing body is subject to the OPMA, even when a quorum of the governing body is not present.

A “governing body” means “the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.” And “public agency” includes “[a]ny subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies.” So, even though there may not be a quorum, you must ask if the committee “acts on behalf of the governing body” or “takes testimony or public comment”?

In 2015, the Washington Supreme Court in Citizen’s Alliance v. San Juan County ruled that committees that serve a purely advisory function are not subject to the OPMA. Here is a link to a blog article MRSC published about the case if you want more information. I recommend you look carefully at the functions and actions of any council committee to see whether this may be considered a “governing body,” i.e., it acts on behalf of the governing body.

If it is not clear whether the OPMA applies, then two councilmembers should probably avoid discussing council committee business outside of the meetings. MRSC legal guidance tends to be conservative, especially on issues related to open government such as the OPMA. Our guidance is not meant to substitute for the legal advice of your city attorney.

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We have a county owned 60 ft. wide right-of-way (ROW) contiguous to our city limits and we'd like to annex this ROW into our city for ownership, management, and maintenance purposes. The county agrees. What type of process is required?
Reviewed: February 2020

The easiest way to proceed would be through the use of RCW 35A.21.210:

(1) The governing bodies of a county and any code city located therein may by agreement revise any part of the corporate boundary of the city which coincides with the centerline, edge, or any portion of a public street, road or highway right-of-way by substituting therefor a right-of-way line of the same public street, road or highway so as fully to include or fully to exclude that segment of the public street, road or highway from the corporate limits of the city.
(2) The revision of a corporate boundary as authorized by this section shall become effective when approved by ordinance of the city council and by ordinance or resolution of the county legislative authority. Such a boundary revision is not subject to potential review by a boundary review board.

For non-code cities and towns, there is a comparable provision at RCW 35.21.790.

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Can you direct me to where I would find information on Washington State records retention requirements for code enforcement files--both paper case files as well as electronic files?
Reviewed: January 2020

The applicable retention periods are set forth in the Local Government Common Records Retention Schedule (CORE). Records related to code enforcement action typically have a retention period of 6 years after the matter is resolved or closed. See DAN GS2012-026, CORE p. 31.

The six year retention period applies to the city’s primary copies of the records regardless of whether they are in electronic or paper format.

Records that are duplicate or secondary copies of the city’s primary copies may be destroyed when they are no longer needed for city business. See DAN GS50-02-04, Rev. 2 (CORE Schedule p. 163).

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Can a city acquire property through adverse possession?
Reviewed: January 2020

If a city can establish all the elements of adverse possession, it can obtain property in that manner. We have consistently advised that a city may do so and we have also noted that cities may acquire prescriptive easements. The decision in Aylmore v. Seattle, 100 Wash. 515 (1918), supports our advice with respect to adverse possession. We have also cited McQuillin, Municipal Corporations, §§ 28.15 and 30.21 for the proposition that a city can acquire property by adverse possession.

We have provided the following advice as to acquisition of a prescriptive easement:

It is clear in this state that public highways over private property may be acquired by prescription. See the cases of Todd v. Sterling, 45 Wn.2d 40 (1960) and Northwest Cities Gas Co. v. Western Fuel Co., 13 Wn.2d 75 (1942).

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Is there a conflict with Lodging Tax Advisory Committee (LTAC) members voting to support their organization’s application?
Reviewed: January 2020

It's our opinion that LTAC members may participate in voting on funding of activities they are specifically involved with. Although that would appear to present a conflict of interest situation, that conflict is, in our opinion, impliedly authorized by the language in RCW 67.28.1817(1) providing that at least two members of the committee be "persons involved in activities authorized to be funded by revenue received under this chapter." Also, the committee is advisory only, and it is the council that makes the actual decision on the use of the funds.

So, although there is no specific legal authority (AGO or court decision) on this issue, we think it's okay for the members to vote in such circumstances.

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Are LEOFF-1 Disability Boards subject to the Open Public Meetings Act?
Reviewed: December 2019

Yes, the LEOFF 1 Disability Board is created pursuant to RCW 41.26.110 and subject to the Open Public Meetings Act. RCW 42.30.030 provides in part: “All meetings of the governing body of a public agency shall be open and public.” A public agency is defined as any city or county (among others) and includes:

(c) Any subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies;

RCW 42.30.020(1)(b) and (c). That would include a LEOFF Disability Board.

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What are our requirements for turning over lost and found items to law enforcement? How long do we keep them?
Reviewed: November 2019

State law for public entities provides that there is a requirement to turn lost and found property over to law enforcement after ten (10) days but within thirty (30) days. RCW 63.21.060 sets forth the procedures to be followed by governmental entities when they acquire lost property. That statute indicates the agency should take the following steps:

  1. Attempt to notify the apparent owner of the property.
  2. If the owner does not collect the property, then within 30 days but not less than 10 days

As an alternative, the agency can choose to dispose of the property in the same manner that the police or sheriff departments dispose of property (see chapters 63.32 and 63.40 RCW – these statutes appear to be procedurally identical, so either one would be useful for your purposes).

The statutes are pretty lengthy; it would be worth your time to read them in full. Here is the summary version for personal property in the hands of police:

  1. Provide written notice to the owner, if known
  2. 60 days from notice, if the property is not claimed, the agency can:
    1. Sell the property at a public auction to highest bidder
    2. Retain the property for agency use; except the owner has the right to reclaim the property within 1 year of receipt of notice
    3. Destroy the property if it has no commercial value or the cost of the sale exceeds its value and other factors are met
    4. Donate the property to nonprofit charitable organizations.

Your agency should ensure that its lost and found policy is consistent with these state law provisions.

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Do local governments have to submit their regular meeting schedules to the state?
Reviewed: November 2019

We sometimes get asked whether the Open Public Meetings Act requires cities, counties, or special purpose districts to submit their regular meeting schedules to the state code reviser’s office or notify the state of changes to the regular meeting schedule. The answer is no.

RCW 42.30.075 requires state agencies to file their regular meeting schedules with the code reviser’s office by January of each year for publication in the Washington State Register and notify the office of any changes to the schedule at least 20 days before the rescheduled meeting.

However, this statute only applies to state agencies, and there is no similar requirement for local governments.

Local government agencies should still adopt a schedule for their regular meetings and publish notice as required by OPMA. RCW 42.30.070 provides in part, “The governing body of a public agency shall provide the time for holding regular meetings by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body.”

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A former employee has requested to view all personnel records that pertain to him/her, specifically the personnel, payroll, and benefit files. Am I correct in assuming that this is a public records request and that since the content of all the requested files/documents are about the requestor, no exemptions and redactions are required?
Reviewed: October 2019

In our opinion, you can characterize this request as being a public records request. And, most---and likely all---of this information can be released since the responsive records are about the requestor. Members of the public have some access to information found in an employee’s personnel file, although there are exemptions (e.g., medical records, performance evaluations, Social Security numbers, employees’ addresses and phone numbers, among others). But the purpose of those exemptions is not present when the requestor is requesting his or her own personnel records.

There may be a few items in the file, that should not be released. Before releasing the file, we suggest you check to see if there is any information regarding a current investigation of a possible criminal offense or information compiled in preparation of an impending lawsuit. 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.

Your agency should review the file to determine if any redactions need to be made. An example of a redaction that might need to be made would be of personal information of another employee, such as that other employee’s address, telephone number, Social Security number, etc. We think that the file likely does not have such information, but if it does, it should be redacted.

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Are there bid requirements if a town desires to lease real property to an individual or is a private transaction acceptable?
Reviewed: July 2019

The town has fairly broad authority to lease real property as long as such authority is exercised “for the common benefit” under RCW 35.27.010 and “for the benefit of the town” under RCW 35.27.370(2). Except for property originally acquired for public utility purposes under chapter 35.94 RCW, the state statutes merely indicate in general terms that the town council has the authority to control, dispose of, and convey real and personal property of the town. State law does not otherwise establish specific procedures which must be followed when leasing municipally-owned property; the ultimate authority with regard to determining whether property should be leased rests with the town council under RCW 35.27.370.

From a fiscal standpoint, the town should determine what will constitute fair market value for such a lease. The town should also give thought to whether a competitive process of some type will result in a better deal. But from a legal standpoint, there is not a required bidding process with respect to leasing real property.

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What is the process for third party notification in the course of responding to a PRA request? Does the third party get the opportunity to review the public records?
Reviewed: June 2019

Yes, the third party involved in a PRA third party notification under RCW 42.56.540 does need the opportunity to review the records in question in order to decide whether to seek a court order preventing disclosure. When third party notification is provided, the reason is because the agency has determined the records will otherwise be disclosed to the PRA requester. Third party notice may be advisable because the PRA is to be construed in favor of disclosure, and the agency could otherwise be subject to penalties if a court finds that it improperly denied public disclosure of non-exempt information.

To provide third party notice, the agency would inform the PRA requester 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 requester) 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:

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.

This notice gives the third party an opportunity to obtain a court order to block release. For more information, see MRSC’s Public Records Act (PRA) webpage.>

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What is the applicable statute of limitations for an OPMA violation?
Reviewed: June 2019

We think it’s two years. The Open Public Meetings Act (OPMA) does not specify a limitations period for bringing an action under the Act. So, we look to chapter 4.16 RCW, which deals with "limitations of actions.” However, no statute in chapter 4.16 RCW applies specifically to alleged OPMA violations. But, there is a catch-all two-year period in RCW 4.16.130 ("Action for relief not otherwise provided for") that seems to apply. That statute provides as follows: "An action for relief not herein before provided for, shall be commenced within two years after the cause of action shall have accrued."

We are not aware of other legal authority (case law or attorney general opinion) on this issue.

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Should a city request that all employees add a public records disclaimer at the bottom of their emails they send?
Reviewed: May 2019

There is not a state law requirement that a public records disclaimer be included on all city or other public agency emails. So, this is a policy decision for your city.

If you decide to add a disclaimer then it is, of course, important that the information be accurate. In our opinion, it is accurate to say all city emails are public records and may be subject to disclosure. This leaves open the possibility that exemptions or prohibitions in the PRA may apply to particular emails or portions of emails and/or their attachments. City employees’ emails likely all fit the broad definition of “public records” in RCW 42.56.010(3).

We found two examples of public records disclaimers in our database:

  1. Disclaimer: Public documents and records are available to the public as provided under the Washington State Public Records Act (RCW 42.56). This e-mail may be considered subject to the Public Records Act and may be disclosed to a third-party requestor.
  2. NOTE: This email is considered a public record and may be subject to public disclosure.

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If a public records requester is seeking metadata, do they have to specifically request metadata?
Reviewed: December 2018

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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Under RCW 70.48.100, are jail records held in confidence only while the person is actually confined in jail?
Reviewed: December 2018

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: December 2018

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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How are the five business days calculated in RCW 42.56.520, which relates to responding to public record requests?
Reviewed: December 2018

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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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: December 2018

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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Can an individual simultaneously hold office in the state legislature and serve as an elected county official?
Reviewed: November 2018

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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Is a public records officer required to maintain a log of all requests? If so, how detailed must the entries be?
Reviewed: November 2018

Yes. All agencies must maintain a log of records requests, tincluding the requestor identity (if provided), the date and text of the request, the description of records produced, redacted or withheld (and the statute authorizing withholding) and the date of final disposition of the request. RCW 40.14.026(4). In addition to the general log, all agencies with actual staff and legal costs associated with fulfilling PRA requests of at least $100,000 during the prior fiscal year must report a series of metrics to the Joint Legislative Audit and Review Committee (JLARC). RCW 40.14.026(5). For more information on the JLARC reporting, see the MRSC Blog JLARC Unveils Public Records Reporting System.

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What statute allows a city to exempt its B&O tax records from public disclosure? 
Reviewed: November 2018

RCW 35.102.145 allows cities to adopt an ordinance specifically exempting their B&O tax returns and tax information from public disclosure, "in the manner provided by RCW 82.32.330." (RCW 82.32.330 is the primary statute that exempts state tax records from disclosure.) RCW 35.102.145 is incorporated into the PRA through RCW 42.56.230(4).

Note that, if a city fails to adopt a statute specifically exempting their B&O tax records from disclosure, there is no other exemption that can be cited to exempt such records.

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 What are the records retention schedules?
Reviewed: November 2018

Records retention schedules are issued by the Local Records Committee to serve as the retention schedules and disposition authority for records held by local government agencies. The Local Records Committee is a committee which includes the state archivist, a representative appointed by the state auditor, and a representative appointed by the attorney general.

The records retention schedules may be applied directly by agencies as authority to destroy the records listed after the expiration of their approved retention periods. It requires no further authorization or approval.

The most recent versions of the Local Government Records Retention Schedules are available on the Washington State Archives website. Those documents are updated periodically.

In addition to the general records retention schedule applicable to local government agencies, there are retention schedules for some specific departments of local government agencies. Review the Records Management - Local Government page for further information.

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How soon must a city respond to a request for public records?
Reviewed: November 2018

State law requires that responses to requests for public records be made "promptly." Specifically, cities and other governmental agencies must respond in writing within five business days of receiving a request by either: (1) providing the record; (2) providing an internet address and link on the agency's web site to the specific records requested; (3) acknowledging receipt of the record and providing a reasonable estimate of the time in which a response will be made; or (4) acknowledging receipt of the request and asking the requestor to provide clarification for a request that is unclear and providing a reasonable estimate of time the agency will require to respond to the request if it is not clarified; (5) denying the request. Additional response time beyond five days may be based upon a need to clarify the request, to locate and assemble the records requested, to notify people and agencies affected by the request, or to determine whether any of the requested records are exempt from disclosure (RCW 42.56.520). WAC 44-14-04003 discusses the required timely response and provides some commentary on providing a "reasonable estimate" of the time necessary to respond and on asking for a clarification of the request.

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For a public records request: can the agency charge for the cost of a flash drive or other storage media to produce the records?
Reviewed: November 2018

For a public records request, an agency  may charge for the actual cost of the flash drive or other storage media used to produce the electronic public records requested. This is true whether the agency has adopted the statutory default fee schedule or has adopted a fee schedule with their actual costs (RCW 42.56.120).

In charging its actual costs, the agency needs to have a statement of factors and manner it used to determine actual costs. For examples of fee schedules adopted by agencies, see our webpage on the Public Records Act (Scroll down page to section on "Charges for Copying and Producing Electronic Records").

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What is the law regarding overbroad public disclosure requests?
Reviewed: November 2018

An agency can deny a request for “all or substantially all” agency records; this is not a valid request for identifiable records and can be denied by the agency (RCW 42.56.080, WAC 44-14-04002(2)). However, if a requestor asks for “all or substantially all” of the agency’s record on a particular topic or to/from a particular person, the agency cannot deny the request (although it can, of course, work with the requestor to clarify or narrow the request). See RCW 42.56.520(1)(d); WAC 44-14-040(4)(c); WAC 44-14-04002(2).

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How long must a city or county retain the minutes of advisory boards, committees or commissions?
Reviewed: November 2018

The Local Government Common Records Retention Schedule (CORE), version 4.0 (May 2017), provides in section 1.10 that such records shall be retained for six years, and have potential archival value, so your regional archivist should be contacted before disposing of the records.

For more information on this topic, see the following:

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Must copies of public records be provided at no cost if requestor says he/she/they cannot afford the cost?
Reviewed: November 2018

There is no provision in the Public Records Act that exempts indigent persons from having to pay for copies of public records pursuant to a PRA request. The PRA allows a public agency to adopt a policy allowing waiver of PRA charges (RCW 42.56.120(4)); however, unless it puts an upper limit on that number, it would be opening itself up to providing to indigent persons any number of copies at no charge. Also, any such policy should require proof of indigent status, as that may be defined in the policy.

For more information on this topic, see the Public Records Act webpage.

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May cities and counties impose their regular photocopy charges when responding to a public disclosure request for copies of their civil service rules?
Reviewed: November 2018

No. State law requires that cities and counties provide copies of police or fire civil service rules to the public for free. See RCW 41.08.040(1) and RCW 41.12.040(1), pertaining to fire and police civil service in cities, and RCW 41.14.060(1), pertaining to civil service for the sheriff's office in counties, which provide that the civil service rules and regulations "shall be printed, mimeographed or multigraphed for free public distribution."

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Which RCWs or WACs provide that an e-mail, text, or social media post is a public record?
Reviewed: November 2018

The Public Records Act defines the term "public record" very broadly to include:

any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any . . . local agency regardless of physical form or characteristics.

See RCW 42.56.010(2).

RCW 42.56.010(3) contains an equally broad definition of a "writing":

"Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.

Case law has concluded that emails, text messages and social media posts are public records. O’Neill v. Shoreline (emails); Nissen v. Pierce County (text messages); West v. City of Puyallup (social media posts). When an email, text message or social media post is sent or posted from a personal account, the email, text or post is a public records only if it was prepared within employee’s or official’s scope of employment or official capacity. For more on records located on personal accounts, please see the following:

For more information on this topic, see MRSC’s Public Records Act webpage.

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May a local government direct a requestor to another local government's website where interlocal agreements are posted to satisfy a public record request?
Reviewed: November 2018

RCW 42.56.520 allows a public agency, as a valid response to a public records request, to provide an Internet address and link on the agency’s web site to the records requested.  In this case, the link is to another local government’s webpage, so there could be some quality control issues (e.g., if the link is moved and no longer provides the record requested). However, if the agency ensures the link is functioning and provides the records requested, this should comply with RCW 42.56.520, even though the record is located on another agency’s website. Alternatively, the agency could download the interlocal and provide the record directly, rather than sending the requestor to a different agency’s website.

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Can a PRA requestor remain anonymous?
Reviewed: November 2018

An individual can use a pseudonym or remain anonymous in making a PRA request, except under certain limited circumstances where state law limits who may receive certain records.

The Attorney General’s Office has published an Open Government Resource Manual that includes a discussion about the identity of a requestor. At Chapter 1.6B it states:

RCW 42.56.080 provides that agencies may not distinguish between requesters and must make records available to “any person.” However, the PRA recognizes that other statutes may limit which persons may receive records. RCW 42.56.080. For example, an agency may need to determine whether a particular requester is authorized to receive requested health care records pursuant to RCW 70.02.030. Also, a court order (including an injunction under RCW 42.56.565 or < a href="http://apps.leg.wa.gov/RCW/default.aspx?cite=71.09.120">RCW 71.09.120(3) barring an inmate or sexually violent predator from receiving a record) may restrict an agency from releasing records to particular persons. RCW 42.56.080; WAC 44-14-04003(1). Or, an agency may need to know the identity of a requester asking for a list of individuals to verify the lack of a prohibited commercial purpose. RCW 42.56.070(9); RCW 42.56.080; SEIU Healthcare 775NW v. State (2016). For requests falling within the 2016 law, an agency may need to know the identity of a person requesting a body worn camera recording. RCW 42.56.080 (as amended in 2016); RCW 42.56.240 (as amended in 2016). Therefore, depending upon the records requested and the laws that govern those records, sometimes an agency may consider the identity of a requester or need more information from a requester

So, unless one of these circumstances applies, the agency cannot require the requestor provide their legal name in order for the agency to respond to a PRA request. Again, see RCW 42.56.080.

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Can an agency hire an outside firm to assist in going through the agency's records to meet a PRA request?  If yes, can the agency charge the requestor for the actual cost for this service?
Reviewed: November 2018

Yes, the agency may hire an outside firm to help it meet the request, but the agency may not pass onto the requestor the cost of hiring the outside firm. The PRA, at RCW 42.56.120, states: "No fee shall be charged for the inspection of public records or locating public documents and making them available for copying," unless the request involves a customized service charge or is a request for a body camera recording.

If the agency has limited staff to devote to the request and has other important time commitments, that should be taken into account in providing the requestor with the reasonable estimate of the time it will take to respond to her request. Although records should be provided within a reasonable time period, besides the five-day initial response required under RCW 42.56.520, there is no required time period in which the agency is required to provide the records for inspection or copying.

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May an agency charge more than 15 cents per page for color copies?
Reviewed: November 2018

The statutory default amount for all hard copies is 15 cents a page; if the agency has adopted the statutory default amount, it can only charge 15 cents a page for a color copy. However, if an agency has adopted a fee schedule with its actual costs, and has determined that the   cost of a color copy is, say, 20 cents, it may charge that amount for color copies. RCW 42.56.120 provides in part as follows:

(2)(a) Agency charges for actual costs may only be imposed in accordance with the costs established and published by the agency pursuant to RCW 42.56.070(7) and in accordance with the statement of factors and manner used to determine the actual costs. In no event may an agency charge a per page cost greater than the actual cost as established and published by the agency.

(b) An agency need not calculate the actual costs it charges for providing records if it has rules or regulations declaring the reasons doing so would be unduly burdensome. To the extent the agency has not determined the actual costs of copying public records, the agency may not charge in excess of:

(i) Fifteen cents per page for photocopies of public records….

For information on establishing per page charges, see WAC 44-14-07001 ("General rules for charging for copies"), one of the Attorney General's "Model Rules" for public records disclosure.

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How long does an office have to keep a Public Records Request (from outside individuals) and the documents produced for the Request?
Reviewed: October 2018

As an initial matter, the Public Records Act (PRA), chapter 42.56 RCW, does not require an agency to make an extra copy of a record the agency provides in response to a PRA request. For example, if a PRA request is made for a document that exists as a hardcopy record and the agency makes a photocopy of the record and provides it to the PRA requester, the agency is not required to make an extra copy of that record to keep for agency purposes.

Sec. GS2010-014 Rev. 2 of the Local Government Common Records Retention Schedule (CORE) applies to public records requests. It provides for a two year retention period for records “relating to requests from the general public” under the PRA. The types of records listed in this category include internal and external correspondence relating to a PRA request and other records “documenting” the PRA request. This retention period applies but is not limited to:

  • Internal and external correspondence relating to the request;
  • Legal advice/opinions;
  • Records documenting the public records provided to the requestor (copies or lists of the records provided, etc.);
  • Records documenting the public records (or portions) withheld (exemption logs, copies of portions redacted, etc.);
  • Records documenting administrative reviews relating to the request
  • Tracking logs.

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Request for sample electronic records management policies.
Reviewed: January 2014

Most Washington local government electronic records management policies are based on the Washington State Archives requirements and records retention schedules for local governments. The State Archives has issued several useful publications, including the guidelines for electronic mail policies and records management (see links below). While an electronic records management policy generally addresses the retention of all electronic records, in practice many of these policies deal primarily with E-mail. Sometimes local government network use and Internet use are covered as well.

The following are issues that are appropriately addressed in an electronic records management policy:

  • Creation of records
  • Proper and improper uses (especially related to E-mail and Internet use)
  • Public disclosure, privacy/confidentiality, and other legal issues
  • Records retention requirements
  • Maintenance and management of records
  • Retrieval of electronic records
  • Monitoring of records and enforcement of policy (including city's right to access)
  • Security.

Such policies typically include a purpose and definitions sections. Other specific topics may include use of electronic signatures, geographic information systems, and copyright.

Rules have been adopted regarding the preservation of electronic records - see Ch. 434-662 WAC.  The State Archivist Office has prepared a list of "Frequently Asked Questions for Digital WAC 434-662"; that document also answers questions regarding archiving of local government electronic records at the state digital archives. 

Washington State and Local Government Information

Policies from Other States

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