Handling Vague and Complex Public Records Requests: Developing Your Plan of Attack
February 28, 2013
Sara Di Vittorio
Category: Guest Author , Public Records Act
Public records requests run the gamut from the simple request for a copy of a police report to the complex request for any and all emails sent or received by an individual with no timeframe limitation. While it may be easy to wrap your mind around the search for records responsive to those easy requests, it can be quite daunting to face a seemingly limitless request. This article focuses on strategies for dealing with seemingly impossible requests that are either too vague or too complex to make responding a simple process.
I am seeking all records referenced in an article that was in the newspaper last week about your organization.
I would like a copy of my ______ [note: it really is just an empty space in the request]
Have you ever seen a request like this – a request that makes you scratch your head and think “how am I going to respond to that?” The first step in dealing with a request where you cannot figure out where to start is to start with what you know. Is there any part of the request that makes sense? Is there something you can identify to help you isolate what clarification to ask for? RCW 42.56.520 allows us the ability to request clarification from the requestor. There are two ways to go about requesting clarification: 1) you can offer up your interpretation and give the requestor the opportunity to correct you, or 2) you can simply ask for more information about any portion of the request that may be unclear. The first option lets you create the “box” of what you will look for and puts the onus on the requestor to tell you that you got it wrong. This takes the form of a response like, “I have interpreted your request to be seeking X, if that interpretation is incorrect, please let me know.” With any luck, the requestor will respond confirming your interpretation is correct or will respond with more information that makes the request less vague. The second option is more open-ended for the requestor – like, “I do not understand your request and am unable to determine if my office has responsive records. Can you please provide specific, clarifying information as to what records you are seeking?” Hopefully, this will inspire the requestor to isolate what they are seeking. Unfortunately, the danger with option two is the response from the requestor will be equally as vague as the original request.
It is always a good idea to communicate with the requestor rather than proceeding with your search without making sure, to the best of your ability, that you're gathering the records being sought. If the request is vague enough that you have had to figure out what is being requested, you should communicate with the requestor so it is clear how you've interpreted the request. Then give the requestor the opportunity to correct you if you've interpreted the request wrong. If the requestor does not correct you, you can assume you have interpreted the request correctly. If a lawsuit is eventually filed alleging you failed to produce responsive records, the letters you sent will document what you were searching for and that you gave the requestor the opportunity to redirect your search. It should also be noted that where portions of a request are clear and others vague, you should begin taking action on request items that are clear, while waiting for the requestor to provide clarification regarding the vague portions of their request. You should not wait on responding to a request, in total, if clarification is only needed, in part.
Please provide all emails sent by your department in the last two years.
Please provide any and all records related to the 10th Street project.
As daunting as those vague requests may be, a request like these that seems to request every record your department/agency/city/county has can be overwhelming. Begin with baby steps in responding to these requests. Ask yourself the following questions: where does it make sense to start? What stuff is easy to gather? What stuff is going to take more time to find? What parts are easier to produce with fewer redactions? What's more labor intensive? Once you have looked at these questions, you can begin to plan your strategy for gathering and producing records in an efficient way. As you start this process, be sure to get out your hold notice as quickly as you can so the people in your department with potentially responsive records know that a request has been received and they cannot delete potentially responsive records.
Another good place to start is with cutting out the fluff. Many times requestors can overwhelm staff simply by their wordiness. An example is a request for “any and all records related to the 10th street project, including every proposal, notes, emails, voicemails, reports, payments, phone records, job descriptions and training records of all employees working on this project, policies, and rules with associated metadata.” After reading a paragraph like this one can immediately feel overwhelmed and not know where to begin. Simply put, this requestor wants every single record regarding the 10th street project, regardless of format. There will be other considerations such as retrieving electronic records in their native format in order to produce the metadata as well as some clarification on some items, but don't get drawn into getting lost in all the descriptors. They want any and all records, so begin by making a list of all locations and people you will need to check with to ensure that all records are identified and gathered. This doesn't make the process smaller or quicker most likely, but it keeps you from getting stuck in the mire of a wordy request.
If you need clarification, ask for it! As discussed before, you have the right to ask for clarification. If there is no timeframe on the original request, ask the requestor if he or she is willing to give you one. It's also acceptable to ask the requestor to give you additional details that will aid in your search for records. Just know that if the requestor does not give you the clarification you've asked for, you still need to gather records responsive to the original request, if identifiable.
When you are ready to begin gathering and producing records, take a small chunk and use the installment process provided for in RCW 42.56.080. Providing records on an installment basis is a very useful tool in a plethora of ways. First, once the initial installment has been made available, you are not obligated to start working on the second installment until the first installment has been paid for or inspected by the requestor. Second, if the requestor is looking for something specific, this may encourage them to narrow their request so they get what they want faster. Third, it allows you to get organized – you can pick the easiest thing to gather and produce and get that out the door first and work your way up to the more complicated portions of the request.
Conducting a Reasonable Search
In Neighborhood Alliance of Spokane v. County of Spokane, 172 Wn.2d 702, 261 P.3d 119 (2011), the Supreme Court set the standard for proving you conducted an adequate search for public records. The court will decide whether or not you conducted an adequate search by determining if your search was “reasonable”. The Court said you are required to search in those locations where responsive records are “reasonably likely” to be located. In proving this, you will be required to prove how your search was conducted, where you searched for records, and that you searched those places where records were likely to be found.
So, practically, what does this mean? When you start the process of figuring out how and where to search, ask yourself the following questions: What types or records are being requested (e-mails, hard files, any & all, etc.)? Who may have responsive records (what departments (in a large agency/city/county), what individuals)? What time frame applies? Where do I need to search? How does the requestor want the records (electronically, a particular format, paper copies, etc.)? In answering these questions, you will set the parameters for your search. The last question on the list is particularly important – from the get-go you want to make sure you get the records from people in the format the requestor wants. For example, it does no good to get emails in .pdf format if the requestor has asked for them as .pst or .msg files. If that happens, you will end up having to go back and ask people to give you records again.
Once you have created your search plan, make a list of all locations you will search. Also make a list of all individuals you think will have responsive records. If you are unsure about any location or individual, err on the side of including that location or person in your search.
When you contact the individuals you think may have records, clearly articulate what has been requested (this may mean rewriting the request to reflect how it has been interpreted), what format you need the records provided in, and suggest search terms for electronic searching (if you can). If you are using Outlook to send out the request, use voting buttons so you can easily track who votes yes and who votes no. It is your responsibility to then follow-up on the votes. Make sure your agency can account for a response from every person/location who was asked to search for records. If someone does not vote, you need to contact that person and get a vote from them. Keep all documentation of the search in your disclosure file. Keep a record of the locations searched, the individuals asked, the votes of the individuals asked, whether or not the people who voted yes followed up and provided you with records, and the electronic search terms you asked people to use. It's also a good idea to keep track of the amount of time spent searching – both the time spent by you and the time spent by other individuals in looking for and gathering responsive records.
Your search must adapt to ensure it stays adequate. That means, when you are reviewing responsive records, you must follow the leads you find. If you find information that indicates there may be other people who may have records, locations to check, or search terms to use, you must re-search using this knowledge. This is especially likely with requests for “any & all” records – if you come across an email with recipients from whom you do not have records, you need to follow-up to see if those people have responsive records or if a record you are reviewing references another record that you don't have that may potentially be responsive, you need to track that record down.
Asking For Help
There's no shame in asking for help in interpreting a request or figuring out how to conduct your search. It is possible you will get a request for a subject area with which you are not familiar. Don't hesitate to ask for assistance from the subject experts in that particular area to learn more about what does and does not exist, who and where should be contacted and what search terms may be needed. It's also possible that asking a co-worker or your assigned attorney will help you in figuring out how to interpret the request. Your assigned attorney is a good resource for interpreting what redactions may apply to a particular record, for establishing best practices and standard procedures, and to help figure out the most effective way to communicate with the requestor. These additional resources can be invaluable in ensuring that your work is done so that you are providing the requestor with the “fullest assistance.”
This article contains suggestions on how to handle vague and complex requests. It is not an exhaustive list, but can help you find a good place to start. Good luck in your searches!
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