The PRA and Third-Party Notice During Emergency Court Shutdowns
As a result of the coronavirus disease 2019 (COVID-19) outbreak, many local superior courts have shut down or drastically cut back on hours. In some jurisdictions, it is currently not possible for a third party with an interest in the record to obtain an injunction by the deadline set by an agency. What should the agency do?
The COVID-19 outbreak events are unfolding rapidly. Agencies may need to take into account new developments or facts that cannot be anticipated at this time or factored into this general guidance. Please be aware that this is general information provided to assist agencies as we navigate these unusual times. The following is not a substitute for legal advice. If an agency needs legal advice, wants to consider possible other options, or wants to discuss the scope of any court orders affecting the operations of its local superior court, it should consult with its legal counsel.
Background: Third-Party Notice
The Public Records Act (PRA) allows public agencies to notify affected persons of a public records request (often called “third-party notice.”) See RCW 42.56.540 and RCW 42.56.520(2). RCW 42.56.540 states that an agency “may” provide such notice unless notice is required by law. As the Attorney General’s Office Public Records Act Model Rule comment states in part at WAC 44-14-04003(12):
The act provides that before releasing a record an agency may, at its “option,” provide notice to a person named in a public record or to whom the record specifically pertains (unless notice is required by law. This would include all of those whose identity could reasonably be ascertained in the record and who might have a reason to seek to prevent the release of the record. An agency has wide discretion to decide whom to notify or not notify. First, an agency has the “option” to notify or not (unless notice is required by law). Second, if it acted in good faith, an agency cannot be held liable for its failure to notify enough people under the act. However, if an agency had a contractual obligation to provide notice of a request but failed to do so, the agency might lose the immunity provided by RCW 42.56.060 because breaching the agreement probably is not a “good faith” attempt to comply with the act. (citations have been omitted).
There are some instances when notice or consent is required by law before release of some information. For example, see RCW 42.56.250 (6) for procedures regarding release of certain workplace harassment investigation records and, for state agencies, see RCW 42.56.660 for notice procedures for certain other workplace sexual harassment or stalking records (effective July 1, 2020). Or, as referenced in the Model Rule comment, an agency may have a contractual obligation to provide notice prior to release.
There may be situations when the agency provides notice of a PRA request when the third party, not the agency, has a reason to seek to prevent release of the record and that person is in the best position to identify to a court any arguments why certain information should not be released. Examples might include a private vendor’s asserted trade secret or an employee’s asserted privacy right.
Part of the purpose of third-party notice is to allow that person to go to court and obtain an injunction or protective order preventing the agency from releasing records. The PRA permits a reasonable delay in providing responsive records in order to permit affected parties a “realistic opportunity”, i.e. “enough time,” to obtain a protective order. See Wades Eastside Gun Shop v. Dep’t of Labor and Industries, 185 Wn. 2d 270, 372 P.2d 97 (2016).
Status of Courts During the COVID-19 Emergency
Some superior courts have been restricting some court business as a result of the outbreak. In addition, on March 19, 2020, the Washington State Supreme Court entered an updated Order addressing all court proceedings. In this Order, the Court continued (or delayed) all non-emergency matters until after April 24, 2020. More recently there have been some state and local restrictions on nonessential gatherings, other activities, or movement in a community. Depending upon the changing circumstances or the superior court in a particular county, it is possible there may be future developments or other restrictions that impact court proceedings and public access.
Consequently, currently affected persons to whom the agency provided or will provide third-party notice of a PRA request will likely not have the same kind of “realistic opportunity” to quickly obtain an order enjoining or preventing disclosure of a public record as compared to the opportunities available before the COVID-19 event.
An agency may wish to consider some additional options. Consider the following scenarios:
Scenario 1: Contact the affected person
When an agency has already provided third-party notice, the agency can contact the affected person to whom it had provided third-party notice to find out their intent. If the person indicates they do not intend to seek an order enjoining disclosure of records, regardless of any court closures or reduction of court proceedings, the agency should proceed with processing the records request. It is best that this communication be in some form of writing/email or confirmed in writing/email with the third party.
Scenario 2: Extend the time period
When an agency has already provided third-party notice, the agency can consider extending the time for the person to provide an agency an injunction enjoining disclosure of records. This may occur if the person states it is still their intent to seek a court order to enjoin disclosure but they have not been able to do so given current events, or the agency determines on its own initiative that additional time is needed in order to give the person a “realistic opportunity” to obtain an order.
Again, this communication needs to be in writing. The scope of this extension should be “realistic” but also narrow so as not to create an unreasonable delay in the release of records. What is reasonable will need to be determined on the facts, including but not limited to:
- an agency’s local superior court’s calendar, and
- a local court’s ability to hear civil court matters after the COVID-19 disease event ends and the court resumes normal operations (for example, there may be a backlog).
An agency may want to identify a date (that the person must provide the agency an injunction) based on the current best information, including the anticipated date on which the court is to resume normal operations. As noted, an additional factor to consider is the likely backlog of cases due to the court continuing non-emergency motions. An agency that selects this option should monitor the court’s operational status and be prepared to provide updates to the third party and the requestor as warranted.
An agency may want to tie the date (for the person to provide the agency a court order) to a date on which the court resumes normal operations (for example, 10 or 20 days after the court states on its website that it has resumed all normal superior court civil proceedings). This extension process is not without some possible risk, and the more time an agency allows the greater the potential risk. Keep in mind that if the agency is challenged, it will have to justify the time period it allowed.
Scenario 3: New PRA requests
For new PRA requests, an agency should first consider whether third-party notice is appropriate or required. The discussion in the background section above offers some factors to consider.
When an agency decides third-party notice is appropriate or required, an agency can take the court’s restricted calendar into consideration in identifying a deadline for the person to obtain and provide an injunction or order to the agency. While providing a 10-day time period to obtain an injunction from the date the agency provides the third-party notice is a commonly used time period in normal circumstances, that time period may not work if court business is closed or significantly reduced, or if, upon the court reopening, there is a backlog of matters.
As noted above, an agency may want to tie the date (for the person to provide the agency a court order) to a date after which the court resumes normal operations (for example, 10 or 20 days after the court states on its website that it has resumed normal superior court civil proceedings). Again, these communications should be in writing, and, as noted previously, the burden will be on the agency to justify the time period allowed.
As described above, third-party notice is generally discretionary and an agency may delay release for a reasonable period of time. However, these are unusual times and where previously a third party may have been able to appear before a court relatively quickly, during the current health crisis that may not be the case. What may have been a matter of a couple of weeks previously, may be many weeks or more now. That said, when making its estimate of a reasonable period for obtaining an order, an agency should consider the requestor’s perspective and PRA-based expectation to obtain copies of agency records, and that an agency violates the PRA when production is unreasonably delayed. An additional consideration previously mentioned is that an agency that acts in good faith in releasing records cannot be held liable for its failure to provide optional or discretionary third-party notice or for releasing records when it could have asserted an exemption.
It is prudent to obtain advice from the agency’s legal counsel as agencies consider these and other relevant factors when weighing options.
Two final comments. First, the PRA authorizes records to be provided in installments. If only a portion of the records responsive to a request are within the scope of the third-party notice, an agency should continue processing and provide the other records responsive to the request.
Finally, good communications benefit both the requestor and the agency; consider informing the requestor of the agency’s decisions with respect to third-party notices and the basis for making them.
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