Starting the Clock: Washington’s Supreme Court Gives New Guidance on Closing Records Requests

Completing and closing an agency’s response to a public records request may be one of the more satisfying aspects of working with public records. In my conversations with records professionals, they often mention the satisfaction of knowing they have completed their task to help requestors when they send out the final installment of the records the requestor was seeking.

However, as a recent Washington State Supreme Court case shows us, we must do more than merely provide the records in order to complete and close out a records request. We must also clearly communicate that the request is closed, that the agency does not intend to take further action on the request, and that the requestor’s time limit to file a claim or lawsuit has started.

Ready…

If a requestor wishes to go to court and claim that a record was improperly withheld or redacted, they must file their claim “within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.” See RCW 42.56.550(6).

This time period is what lawyers refer to as a “statute of limitations.” If someone tries to file an action even one day later, the judge will likely dismiss their case. So, it is very important to know when the clock for that statute of limitations starts ticking, even though there is nothing in the Public Records Act (PRA) itself that explicitly requires agencies inform requestors about the ticking clock.

Over the years there has been significant litigation around what it means for there to be a “last production of a record.” In Belenski v. Jefferson County (2015) the court concluded that the time period begins when an agency provides a “final, definitive response” that is “sufficient to put [the requestor] on notice that the [agency] did not intend to disclose records or further address this request.” This would be true even if the agency later discovered additional responsive records and produced them to the requestor — the agency’s intent as expressed in that response would control.

In practice, this has resulted in guidance from the Washington State Attorney General’s Office (WAC 44-14-04006) that agencies should provide some kind of closing letter or email that clearly informs the requestor that their request is now closed but invites the requestor to promptly contact the agency if they believe additional responsive records have not been provided.

MRSC has also consistently advised against using language that looks to the future, i.e., “if you do not pick up your records by March 30th, your request will be closed.” Instead, there needs to be a communication which has that “final, definitive” language that the request is now closed.

But what happens when an agency — either upon further prompting by the requestor or on its own initiative — finds and produces additional records? Should this restart the clock since there has now been another “last production of a record?" According to the recent decision in Cousins v. Dept. of Corrections, it depends on how much information is in that original closing letter and how the agency communicates subsequent action to the requestor.

Set…

The Cousins case examines whether a closing letter sent by the Washington State Department of Corrections (DOC) sufficiently put the requestor on notice that the request was closed, and that DOC did not intend to produce additional records.

Terry Cousins submitted a public records request pertaining to her sister, who died in DOC custody. DOC produced several installments of records, but, due to a series of miscommunications with the requestor and inaccurate notes to the agency’s file, including an alleged nonpayment of fees, DOC closed the request with a January 2019 cover letter stating that the request “is now closed. However, if you should have any questions related to this request, you may contact [records staff].”

DOC did not communicate why the request was closed, and the requestor said that she believed it was closed because DOC had found all responsive records — despite earlier communication between the requestor and records staff noting missing email attachments.

The requestor asked DOC several follow-up questions, including about the missing email attachments, but DOC’s responses repeatedly failed to address the questions or allegedly missing records. After a staff change and more misunderstanding by DOC staff based on inaccurate notes to file, DOC finally informed the requestor that her original request had been closed due to nonpayment. After explaining the inaccuracy of this information, the requestor said that she believed that DOC would continue to work on her request — DOC did not, but also did not communicate to the requestor it did not intend to continue to work on her request.

It was not until July 2020, more than 18 months after the original closing letter, that DOC realized the mistakes that had been made and “re-opened” the request. DOC began sending the requestor multiple installments containing hundreds of records that were responsive to the original request.

The requestor filed her PRA claim against DOC for its “intolerable delay” in January 2021. DOC asserted that the statute of limitations had run out in January 2020, one year after the original January 2019 closing letter — and that it was still producing responsive records.

In June 2021, DOC produced an installment with a cover letter stating that the original records request was “now” closed. The requestor pointed out records were still missing, which DOC produced in August 2021 with a cover letter stating that the original request “remains” closed and no further installments were forthcoming.

The trial court dismissed the case without considering the merits of the requestor’s claims, finding that the statute of limitations started to run from DOC’s January 2019 letter stating that the request was “closed.” The requestor appealed and eventually the case went to the state supreme court.

After reviewing the detailed facts of the case, the Washington State Supreme Court (Court) held that a sufficient closing letter will generally start the clock and that subsequent production of records would not ordinarily restart the limitations period. However, the Court also held that DOC’s January 2019 letter was not sufficient because it failed to explain why the request was closed or that the one-year statute of limitations had started to run because the agency did not intend to further address the request. The Court pointed out that DOC’s failure to respond at all to the requestor’s timely follow-up questions meant that the requestor had no way of knowing that the January 2019 letter was DOC’s “final, definitive response” to her request.

Instead, the Court found that DOC’s June 2021 closing letter was sufficient and started the clock, in part because DOC clearly communicated in response to follow-up questions that the request “remained” closed. This meant that the requestor’s complaint was filed within the one-year statute of limitations, and the court sent the matter back down to the trial court for a determination based on the merits of the case.

Go!

With the Cousins case, the state supreme court has now given very clear guidance on what it expects to see — at a minimum — in a closing letter in order for the statute of limitations clock to start ticking. As the Court repeatedly emphasized, merely stating that a request is closed is not “sufficient.”

First, the letter must be in plain language that can be understood by a lay audience. This means there should be little to no legal jargon in the letter.

Next, the letter must explain how the request was fulfilled and why the agency is now closing the request. Some examples of proposed language may include:

• All responsive records have been produced and the request is now closed.
• Due to nonpayment of copy charges for the previous installment, your request is now closed.
• We notified you on [date] that you needed to inspect or pick up your records by (due date). You have not done so, and your request is now closed.
• On [date] we told you that your request was unclear and requested clarification by [due date]. We did not hear from you. Because you did not clarify your request and it is entirely unclear, by law we are not required to respond. Your request is now closed.

Next, the agency must inform the requestor that the PRA’s one-year statute of limitations to seek judicial review has started to run and that the agency does not intend to further address the request.

Next, consistent with WAC 44-14-04006, the agency must invite the requestor to ask follow-up questions within a reasonable time frame, which may be specified by the agency.

Finally, having invited the requestor to ask follow-up questions, the agency must actually respond to those questions and then subsequently communicate that the agency does not intend further action and considers the request still closed and the clock running. The Cousins Court noted that even if the requestor asked follow-up questions within a reasonable time, this action did not require the agency to locate additional records. But the agency must respond in some way; it cannot just ignore the follow-up questions. If the agency does not intend to do anything else with the request, then it must explicitly inform the requestor.

In addition to these requirements, MRSC also recommends that agencies inform requestors of their right to seek internal review of any denials of requests per RCW 42.56.520(4) (local governments) or RCW 42.56.530 (state agencies), as well as invite requestors to submit a new request now that the current request is closed.

The Finish Line

In light of this new guidance, it is very important that all agencies subject to the PRA review their policies and adopt closing letter (and follow-up letter) templates that, at a minimum, address the Cousins guidance.

The state supreme court let DOC off the hook a little bit by acknowledging that DOC did not have the benefit of its decision and thus was not expected to have explicitly informed requestors of the PRA statute of limitations. This court (and lower courts following its clear guidance) is unlikely to be so generous moving forward.

MRSC invites agencies to share their templates (closing and/or follow up letters) with us so we may add them to our Sample Document Library and other PRA pages.