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Supreme Court Underscores the Requirement to Produce an Exemption Log under the PRA

March 1, 2012  by  Ramsey Ramerman
Category:  Open Government Advisor

This Advisor column was originally published in February 2009.

In its most recent public records act decision, Rental Housing Authority v. City of Des Moines, 2009 WL 146541 (Jan. 22, 2009), the Supreme Court ruled that the City of Des Moines did not trigger the one-year statute of limitations for Public Records Act claims until after the City had produced its “PAWS II” exemption log.1 The Court held that an earlier letter listing specific categories of withheld records was insufficient. In light of this opinion, local governments should be sure to include a complete exemption log whenever they withhold exempt records.

A few facts are necessary to understand this holding. On August 17, 2005, the City produced almost 600 pages of records to RHA and included a letter that contained a description of categories of records it was withholding and the legal bases for withholding these records. It did not, however, list each individual record. Eight months later, on April 14, 2006, the City produced an exemption log that detailed each record the City had withheld. The requester filed suit January 16, 2007, more than one year after the City’s first letter, but within one year of the complete exemption log.

The statute of limitations provision in the PRA provides, “Actions under this section must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.” RCW 42.56.550(6). In 2005, the Legislature shortened the period from five years in response to a case where a requester waited for several years to make a claim, which increased the mandatory daily penalties. The issue in the case was whether the statute of limitations began to run from the City’s claim in the August 17, 2005 letter that the records were exempt or the April 14, 2006 exemption log that detailed those records.

The PRA requires that agencies provide “a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.” RCW 42.56.210(3). In PAWS II, the Supreme Court determined that this explanation should include “[1] the type of record, [2] its date and [3] number of pages, and, unless otherwise protected, [4] the author and [5] recipient, or if protected, other means of sufficiently identifying particular records without disclosing protected content.”

In RHA, the Supreme Court held that because the City’s August 17 letter did not comply with the requirements of PAWS II, the August 17 letter was not a “claim of exemption” sufficient to trigger the statute of limitations. Instead, the statute of limitations was triggered by the production of the April 14 PAWS II exemption log. The lawsuit was filed within one year of April 14, and thus the suit was timely.

Exemption log requirements

There is a clear lesson from this opinion – local governments should always produce an exemption log that complies with PAWS II. At a minimum, the log should contain the following six pieces of information:

  1. Type of document/description of document
  2. Date
  3. Author/Sender
  4. Recipient (including CCs) if applicable
  5. Statutory exemption and brief explanation for withholding (see note below)
  6. Number of pages

Here is a sample log.

Note: the “brief explanation for withholding” requires local governments to provide enough facts to allow the requester to understand how the statutory exemption applies to the withheld record. If it is a correspondence with an attorney, then not much is required. But other exemptions may require a more extensive “brief explanation.”

1. See Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 271 n.18 (1994) (“PAWS II”). 

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Ramsey Ramerman

Ramsey Ramerman writes for MRSC as a Open Government Advisor.

Ramsey Ramerman is an assistant city attorney with the City of Everett, where he works on open government issues, advises the police department on records issues and works on general municipal law issues. Ramsey also does a limited amount of legal consulting and open government training through his firm Ramerman Law Office PLLC. Ramsey has litigated numerous PRA cases, including several in the Supreme Court.

Ramsey is also one of the founders and the first President of the Washington Association of Public Records Officers. Finally, he was one of the original members of the state Sunshine Committee, on which he served two full terms before ceding his position in August 2015.

Ramsey is the co-editor-in-chief of the Second Edition of the WSBA PRA Deskbook, in which he also co-authored two chapters. Prior to working for the City of Everett, Ramsey worked at Foster Pepper PLLC and served as a law clerk in the state Court of Appeals.

The views expressed in guest columns represent the opinions of the author and do not necessarily reflect those of MRSC.

VIEW ALL POSTS BY Ramsey Ramerman


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