New PRA Legislation: To Boldly Go Where the PRA Hasn’t Gone Before

Did you hear that? It’s the sound of the Public Records Act (PRA) and records retention laws stepping into the 21st century. Governor Inslee signed ESHB 1594 and EHB 1595 on May 16, putting into place a number of notable changes to the PRA and records retention laws applicable to electronic records. Agencies now fulfill about half of their records requests by email, cloud service, or file transfers, so updating the PRA to address electronic records was a long time coming. The new bills also tweak other areas of the PRA unrelated to electronic records. The changes go into effect on July 23, 2017.

So, what has changed in the PRA? Let’s take a look at the highlights.

New Charges Authorized

Charges for Electronic Records

The most significant “21st century” change is that agencies are now expressly authorized to charge for copying and producing electronic records. An agency can charge actual costs incurred for providing electronic copies, including costs related to production, file transfer, storage, and transmission.

If agency policy establishes that calculating actual costs would be unduly burdensome, then the following default charges may be charged:

• 10 cents/page for records scanned into electronic format
• 5 cents for every four electronic files or attachments uploaded to an email, cloud storage service, or other electronic delivery system
• 10 cents/gigabyte for transmitting records electronically

On a related note, if a requestor asks an agency to provide an estimate of charges before copies are made, the agency must provide such an estimate. The requestor must then be given the opportunity to revise their request to reduce the charges.

A third option is charging a flat fee of $2 for providing any records (not just electronic) so long as the agency reasonably estimates that the costs for producing the records are clearly equal to or more than $2.

Charges for Customized Access

Another “21st century” modification is an allowed charge related to requests requiring the use of information technology expertise to prepare data compilations or provide customized electronic access services that are not otherwise used by the agency. Agencies need to describe this charge to the requestor prior to assessment and can require a deposit of up to 10% of the estimated customized service charge costs.

New Tracking Mandate for Public Records

One change that may come as a surprise to many agencies is the new tracking mandate. Not part of the original bill, the legislature added performance measures to ESHB 1594, requiring that all agencies log:

• Identity of requestor (if provided)
• Date and text of request
• Description of records produced in response to request
• Description of records redacted or withheld and the reasons for redaction/withholding
• Date of final disposition of the request.

Agencies with $100,000 or more in annual staff and legal costs associated with fulfilling public records requests during the prior fiscal years must take this tracking several steps further (additional tracking is optional for agencies with costs of less than $100,000/year). These agencies must track the following (and report to the Joint Legislative Audit and Review Committee—JLARC—annually by July 1):

• Leading practices and processes for records management and retention and what percentage of such practices were implemented by the agency
• Average length of time taken to acknowledge receipt of a public records request
• Proportion of records provided within five days of the request and the proportion of requests estimated beyond five days
• Agency's initial (and modified) estimate for providing records as compared with the actual time in providing such records
• Number of requests where the agency asked for clarification from the requestor
• Number of requests denied and the most common reasons for denial
• Number of requests abandoned
• Requests by type of requestor (if known)
• Portion of requests fulfilled electronically compared to requests fulfilled by physical records
• Number of responses required to be scanned
• Estimated agency staff time spent on each individual request
• Estimated costs incurred in fulfilling requests
• Number of claims filed alleging a violation of the PRA and other public records statutes
• Agency costs defending claims of violations of the PRA and other public records statutes
• Agency costs for managing and retaining records
• Expenses recovered from requestors for fulfilling records requests
• Measurement of requestor satisfaction with agency responses, communication, and processes relating to public records requests

JLARC will be developing a reporting tool and metrics for agencies to use in order to comply with these reporting requirements.

New Training Requirements and Resources

Electronic Records Training Required for Public Record Officers (PROs)

Another new mandate is that the PRA and records retention training currently required for PROs (by RCW 42.56.152) must now include training on retention, production, and disclosure of electronic documents, including updating and improving technology information systems.

Enhanced Training and Grant Assistance for Local Governments

But, with the bitter comes some sweet, at least for local governments. Several new PRA-related assistance programs will be available to local governments:

• Attorney General consultation program to assist with best practices for managing public records requests
• State Archives records retention training
• State Archives competitive grant program to improve information technology systems for public record retention, management, and disclosure, and related training

These assistance programs are funded through June 2020.

Changes to Records Procedures

Modified Definition of a Public Record

Another change that warrants mention is the modification of the public records definition to exclude records not required to be retained by the agency that are held by volunteers who:

• Do not serve in an administrative capacity;
• Have not been appointed by the agency to an agency board, commission, or internship; and
• Do not have a supervisory role or delegated agency authority.

Request for “All Records” and Bot Requests May be Denied

An agency can deny a request for all or substantially all records of an agency not relating to a particular topic. An agency can also deny automatically generated (bot) requests received from the same requestor within a 24-hour period, if the requests cause excessive interference with the other essential functions of the agency. (A “bot”? I think this definitely qualifies as a 21st  century change!) 

New 5-Day Response Option

The final change I have chosen to highlight in this blog is the new five day response option: agencies can request clarification of a request, and must couple that with an estimated response time. (This legislative change reflects the holding in a 2017 Washington Court of Appeals case, Hikel v. Lynnwood, where the court held that a request for clarification is not a stand-alone option for a five day response, and it must include a reasonable time estimate for a response.) If the requestor fails to respond to the clarification request and the entire request is unclear, an agency need not further respond to the request. If portions of the request are clear, however, the agency must respond to those portions.  

The PRA changes outlined in this blog are a lot to digest in one sitting (and these are just the highlights!). Undoubtedly, some of the changes will be welcome news for agencies (e.g., a new charge for electronic records, and grant money for improving records-related technology systems). Other changes will seem a bit daunting, such as the new request tracking mandate for larger agencies. Do you have any thoughts on these changes to the PRA? Please share with me in the comments below or by email at fcollins@mrsc.org.