Agencies Must Provide a “Reasonable Time Estimate” in their 5-day Response, Even When Seeking Clarification.
January 20, 2017
Category: Guest Author , Court Decisions and AGO Opinions , Public Records Act
As any public records officer knows, an agency must respond to a Public Records Act (“PRA”) request within five business days (i.e., the same day the following week) to avoid violating the law. Under RCW 42.56.520, the agency may respond by:
- Providing the record;
- Providing an internet address and link on the agency's web site to the specific records requested;
- Acknowledging that the agency has received the request and providing a reasonable estimate of the time the agency will require to respond to the request; or
- Denying the public record request.
This statute also appears to give agencies a fifth option: the option of seeking clarification. Specifically, RCW 42.56.520 states that “[i]n acknowledging receipt of a public record request that is unclear, an agency . . . may ask the requestor to clarify what information the requestor is seeking.”
In Hikel v. City of Lynnwood, (Dec. 27, 2016), however, the Washington Court of Appeals held that this fifth option of “clarification” is not in fact a stand-alone option that complies with the PRA. Specifically, the court held:
The statute does not provide an agency with the option of asking for clarification of a request as a substitute for one of the four enumerated actions to be completed within five days. While the PRA permits an agency to ask for clarification, the agency must also complete one of the four enumerated options within five days.
Instead, the Hikel court held that a reasonable time estimate is ALWAYS required with a response that does not fully resolve the request, even when the agency seeks clarification that may affect that time estimate.
This is significant because the Washington Supreme Court has held that the failure to comply with the five-day requirement in RCW 42.56.520 is an actionable violation of the PRA, even when the agency otherwise fully complies the requirements of the PRA. See Yakima County v. Yakima Herald-Republic (2010) (failure to strictly comply with requirement in RCW 42.56.520 violated the PRA and justified attorney-fee award).
In Hikel, the agency sought clarification because the requestor had made a large categorical “all records” type request that encompassed thousands of emails. Nevertheless, because the request sought identifiable records, a reasonable time estimate was possible, even though that estimate would be highly speculative and would almost certainly have to be revised.
The Hikel court acknowledged that clarification may affect that time estimate but quoted from the Public Records Act Deskbook regarding how agencies can comply with this requirement when faced with a large, vague request:
With some larger requests, the completion date will be fairly speculative at an early stage, and therefore an exact date is not required. Nevertheless, some time range should be included. The agency may want to highlight the speculative nature of the estimate and provide a date when it would expect to have a more accurate estimate. For any large request, however, original estimates may be revised frequently.
The Hikel court expressly noted that this case did not involve the second situation where agencies must seek clarification of a request that fails to provide sufficient information to allow the agency to identify any responsive records. Thus, while the Hikel court’s decision could be read as also requiring a reasonable time estimate in those cases, hopefully a future court directly addressing that situation would recognize that it would be impossible to require an estimate when the request does not even seek identifiable records.
One additional consideration: agencies do not have to wait the full five days for an initial response. Therefore, in some situations an agency could immediately seek clarification and then provide a reasonable time estimate. The Washington Supreme Court held in O’Neill v. City of Shoreline (2010), that as long as the agency complies with one of the four options in RCW 42.56.520 within five days, previous non-compliant responses do not violate the PRA.
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