Some Public Records Act Insights from 2015
There were several highly significant court decisions and other developments in 2015 regarding the Public Records Act (PRA) (chapter 42.56 RCW). The following are six insights for local governments that I’ve gleaned from such developments, with a particular focus on electronic records and use of personal electronic devices by agency employees and officials to conduct agency business.
(1) Within the scope of employment is added to the test for what constitutes a public record created by an individual employee under the PRA. In Nissen v. Pierce County, the Washington Supreme Court, in analyzing whether a record, such as a text message, is a public record under the PRA, concluded that a public record is one that an agency employee prepares, owns, uses, or retains within the scope of employment. The italicized wording isn’t from the PRA – specifically RCW 42.56.010(3); rather, it’s the court’s interpretation of what constitutes a public record. The court clarified further that “[a]n employee’s communication is ‘within the scope of employment’ only when the job requires it, the employer directs it, or it furthers the employer’s interests.” (For more detail, see our blog post on the Nissen decision.)
(2) Just because a record may evidence agency conduct doesn’t mean that record is a public record. The court in Nissen also clarified that records, such as call and text message logs, that merely evidence the acts of a public employee, but which play no role themselves in agency business, aren’t public records. The court held that the logs at issue weren’t public records because they were prepared and retained by Verizon, and there was no allegation or evidence that the county evaluated, reviewed, or otherwise took action to “use” the logs.
(3) An agency can rely on affidavits to establish that an adequate search was conducted. The court in Nissen also provided guidance on how to address situations in which a PRA request is made for public records that aren’t within the agency’s control, such as records resulting from the use by agency staff of personal devices for agency business. In recognizing privacy issues, as balanced with the PRA’s mandate to provide access to public records, the court clarified that an agency can meet its burden of showing that it conducted an adequate search for records by having its employees submit “reasonably detailed, nonconclusory affidavits” that attest to the nature and extent of their search. The Washington State Court of Appeals, in Block v. City of Gold Bar, also provided guidance in this regard, including via a detailed analysis on what constitutes, as documented by affidavits, an adequate search of personal devices and personal email accounts.
(4) Compliance with reasonable policies is key for matters that aren’t addressed directly by the PRA. The decision in Nissen, as well as other decisions, such as Benton County v. Zink, show the importance of having effective PRA policies that address the use of personal cell phones and other electronic devices. The decision in Nissen includes excerpts from local government policies related to use of private cell phones for agency business, as well as regarding agency obligations concerning preservation of public records. Further guidance is provided in Benton County v. Zink (see our blog post on the topic), in which the court carefully considered the county’s actions in the context of its policies and the PRA, and held that the county acted appropriately.
(5) Is a request for “all records” a request for identifiable records? This question became particularly relevant in 2015, and a definitive answer may ultimately require further direction from our courts and/or the Washington State Legislature. The issue surfaced with a PRA request to the Washington State Attorney General’s Office for every public record in the possession of that office. As part of its response, the AG’s office indicated that the PRA requires requesters to identify the records requested, and although the “identifiable record” criterion isn’t a high bar, it “must have some meaning if the PRA is to operate for the benefit of all requesters and serve the purposes of the initiative passed by the people.” More recently, other requests for “all records” were made to a multitude of local agencies, including throughout King County. Needless to say, such requests have direct impacts on an agency’s ability to respond to other PRA requesters seeking records from those agencies.
(6) The PRA survey conducted by the State Auditor’s Office will yield highly significant information about costs associated with PRA compliance. As described in our blog post regarding this project, the Washington State Auditor’s Office (SAO), as directed by the Legislature, is currently engaged in a broad-based effort to collect accurate information from all public entities in Washington, including local governments, regarding costs associated with responding to PRA requests. The survey has been conducted and the SAO is in the process of preparing a report to the Legislature. This effort is sure to offer valuable insights to the Legislature as it considers possible improvements to the PRA.
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