Understanding When It’s Over: Administrative Procedures and the PRA
January 13, 2020
Category: Court Decisions and AGO Opinions , Public Records Act
Last month the Washington Supreme Court in Kilduff v. San Juan County ruled unanimously that an agency could not require that a public records requestor “exhaust administrative remedies” prior to bringing suit under the Public Records Act (PRA). This blog post will summarize the case, review examples of agency policies, and suggest best practices for agency administrative procedures.
The Kilduff Case
In Kilduff the requestor sued San Juan County, alleging that the county failed to conduct a reasonable search and silently withheld records in response to his public records request. The county had responded to the requestor by providing some records and stating that “this email response and attachment fulfills your public records request.” In response to the lawsuit, the county argued that the requestor was required, pursuant to the county’s PRA policies, to seek administrative review by the county prosecutor of the county’s PRA determination prior to bringing suit.
The Supreme Court rejected the county’s argument that the requestor was required to seek review by the prosecutor before bringing suit, finding that such a requirement conflicts with RCW 42.56.520(4), which states:
Denials of requests must be accompanied by a written statement of the specific reasons therefor. Agencies…shall establish mechanisms for the most prompt possible review of decisions denying inspection, and such review shall be deemed completed at the end of the second business day following the denial of inspection and shall constitute final agency action…for the purposes of judicial review.
The Supreme Court based its holding on the language of the statute, which suggests that any review process should be self-executing, and the RCW 42.56.100 requirement that agency rules and regulations provide “the fullest assistance to inquirers and the most timely possible action on requests for information.” The Supreme Court also observed that the PRA Model Rules (WAC 44-14-080(4)) provide that a requestor may obtain court review of denials of records requests “two business days after the initial denial regardless of any internal administrative appeal.”
The Kilduff case notes that a requestor may not litigate denial of a PRA request until an agency has taken final action on the request, citing Hobbs v. Washington State Auditor’s Office. Therefore, the flipside to Hobbs is that an agency cannot require additional administrative procedures after it denies access to public records. Kilduff confirms that the concept of “exhaustion of administrative remedies” does not apply to PRA cases. From an administrative standpoint, it is “over” from two business days following denial of inspection and closure of the request (at the final installment if the responses have been provided on an installment basis), regardless of any administrative review procedures.
Agency Examples of Administrative Review Policies
After reading Kilduff, I was curious about what agency policies provide with respect to administrative review after an initial denial of a public records request. I reviewed 17 public records policies from various types of agencies from around the state (which, admittedly, is a relatively small sampling). Here is what I found:
- None of the policies contain an explicit exhaustion of administrative remedies requirement similar to what the Supreme Court considered in Kilduff, although one did contain a requirement that the parties engage in arbitration, which in my view runs counter to RCW 42.56.520(4) and Kilduff.
- Four of the policies did not contain any language regarding administrative review.
- Of the 13 policies that contained administrative review provisions, all of them provided that review is initiated by the requestor and none of them explicitly provided for review automatically or at the initiation of the agency.
- Regarding the time at which a requestor may seek court review:
- Six policies stated that the requestor may seek judicial review two business days after the initial denial of the request;
- Four policies stated that the requestor may seek court review upon initial denial of the request, and;
- Three policies did not contain language with respect to timing.
- A few policies emphasized the voluntary nature of seeking administrative review and encouraged its use as an informal and low-cost method of dispute resolution.
MRSC has numerous examples of PRA policies on its Public Records Act Basics website.
Thoughts on Effective Use of Administrative Review
Agencies may not require a requestor to seek administrative review prior to seeking court review, but it may nonetheless be a useful mechanism by which agencies and requestors may resolve PRA disputes before they go to court. Under this view, administrative review is something an agency would promote and encourage when it denies access or redacts records.
Such an approach deemphasizes the importance of legal technicalities, such as whether the right to seek court review arises upon the initial denial of the request or two business days later. For a good example of such a policy, see the City of Bellingham’s Public Records Procedure (page 4, “Review Process”), which provides a “voluntary procedure” that facilitates “a quick resolution to any disputes while avoiding the expense and delay associated with litigation.” Such a policy could also be considered a mitigating factor for penalties (helpfulness of the agency to the requestor) in the event of PRA litigation.
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