Regardless of any markings or how the letter got in the hands of the elected official, if the content of the letter pertains to the conduct of government, it is a public record. Whether an exemption applies is a separate question, but someone placing the words “confidential” on an envelope does not relieve an agency of the obligation to make public records available for inspection or copying. You could consider giving third party notice to sender who could then try to seek an injunction to prevent the letter’s release.
Ask MRSC - 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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The preliminary draft exemption only applies to pre-decisional policy recommendations and opinions. It does not apply to raw factual data or the implementation of the policy. For a more thorough discussion, please see our 2016 blog post Explaining the PRA's Deliberative Process Exemption. Based on the information provided, it is unlikely the deliberative process exemption could be applied to all or even part of the draft investigation report.
However, depending on the nature of the violations, consider looking at RCW 42.56.250(6):
Investigative records compiled by an employing agency in connection with an investigation of a possible unfair practice under Chapter 49.60 RCW or of a possible violation of other federal, state, or local laws or an employing agency's internal policies prohibiting discrimination or harassment in employment. Records are exempt in their entirety while the investigation is active and ongoing. After the agency has notified the complaining employee of the outcome of the investigation, the records may be disclosed only if the names of complainants, other accusers, and witnesses are redacted, unless a complainant, other accuser, or witness has consented to the disclosure of his or her name. The employing agency must inform a complainant, other accuser, or witness that his or her name will be redacted from the investigation records unless he or she consents to disclosure;
Until you have informed the employee of the final decision, the records are exempt in their entirety. And even after the investigation is final, certain names must be redacted. I suspect this exemption is more likely to apply to your documents at issue.
In general, the answer is “no.” The only exemption applicable to dates of birth (DOBs) is RCW 42.56.250(8) for employee month and year of birth if found in personnel records.
Note, there are a few exemptions that protect a person’s identity – for example RCW 42.56.240(2) protects witnesses and victims of crimes when their life/safety/property is in danger or they request nondisclosure. But, on its own, the DOB would not personally identify an individual (if their name and other identifying information was redacted out). So, we don’t recommend relying on this exemption to redact a DOB.
We have a page on Disclosure of Personal Identifying Information in Law Enforcement Records. As you will see, it doesn’t mention DOBs. We also have a sample arrest report which shows what to redact and what not to redact.
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.
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.
Here are several good resources:
- Washington State Attorney General’s Office (AGO)
- Public Disclosure Statutes list of exemptions (and associated RCWs) (2021) – Prepared by the AGO’s Sunshine Committee.
- Open Government Resource Manual Chapter 2: Public Records Act - Exemptions
Questions regarding exemptions and appropriate redactions related to specific records should be discussed with your agency attorney.
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.
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.
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.
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.
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.
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
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).
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.
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.
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)
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
- DAN GS50-03E-01 (Employee Pay—Authorizations and Deductions) CORE Page 105
- DAN GS50-03E-02 (Payroll Processing, Distribution and Reporting) CORE Page 106
- DAN GS50-03E-15 (Employee Pay—History) CORE Page 105
- DAN GS2017-009 (Employee Retirement/Pension Verification) CORE Page 120
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.
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.
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.
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.
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.
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.
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:
- Would be highly offensive to a reasonable person, and
- 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.
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:
- Factors Affecting the Cost of Digitizing Paper Records
- Keep Electronic Records in Electronic Format
- 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.
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).
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.
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.
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).
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).
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.
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.
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:
- Attempt to notify the apparent owner of the property.
- 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:
- Provide written notice to the owner, if known
- 60 days from notice, if the property is not claimed, the agency can:
- Sell the property at a public auction to highest bidder
- Retain the property for agency use; except the owner has the right to reclaim the property within 1 year of receipt of notice
- Destroy the property if it has no commercial value or the cost of the sale exceeds its value and other factors are met
- Donate the property to nonprofit charitable organizations.
Your agency should ensure that its lost and found policy is consistent with these state law provisions.
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.”
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.
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.
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.>
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.
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:
- 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.
- NOTE: This email is considered a public record and may be subject to public disclosure.
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.