Public Records Puzzles: When the Request Is Coming from Inside the House!

By now we’re all familiar with the horror movie trope: Multiple creepy phone calls that terrorize the recipient. A frantic call to the police asking for help. With violins screeching in a minor key in the background, the police officer says they’ve traced the call and ... it’s coming from inside the house! Chaos ensues.

MRSC periodically receives inquiries from agencies about how to handle requests for documentation and information from their elected officials and from agency employees.

An internal request from your “bosses” or coworkers adds an additional legal, political, and practical layer to the “normal” disclosure process outlined in the Public Records Act, or PRA (Chapter 42.56 RCW).

Managing these requests can be complex, and there is no statutory guidance in the PRA about records requests from “inside the house.” Former MRSC Legal Consultant Oskar Rey helped define the issues as they relate to elected officials in his 2019 blog, Records Requests from Agency Elected Officials. I will expand on his blog to include internal records requests from agency staff.

Is It a Public Records Request?

Not all requests for records from elected officials or agency staff should be treated as public records requests under Chapter 42.56 RCW. For example, RCW 49.12.250 allows employees to review their personnel file and to place a statement in the file if it contains information the employee does not agree with.

Agencies are required to provide information to bargaining unit representatives, including public records, if the request is in connection with collective bargaining or labor representation under Chapter 41.56 RCW. Certain people are entitled to information and records related to juvenile offenses under Chapter 13.50 RCW. The requirements under these other statutes may allow records to be provided without redaction, and violating those statutes may have different penalties than those provided for in the PRA.

Official business — electeds

A request for records related to an elected official’s duties can often be processed outside the PRA. If a council or board member wants to see records relating to an item on an upcoming meeting agenda, they should be able to request it through the agency’s executive office. Under ordinary circumstances, this is part of the process by which records and information are shared internally within an agency.

For records requests from elected officials, there are some other things to consider. Public records are routinely shared with agency elected officials in the course of conducting agency functions. When that process is running smoothly, a public records request should not be necessary for an elected official to carry out their responsibilities to the agency. Keep in mind that individual members of a board, council, or commission do not have any inherent authority to direct staff — and in some cases, such as in council-manager code cities, elected officials are specifically prohibited from directing staff (RCW 35A.13.120).

Good policies and practices can be quite useful in these situations even if they don’t address every conceivable scenario. Rules of procedure should specify that a non-personal request for records from a member of the governing body should be directed to the agency’s executive officer and not to agency staff.

One thing rules of procedure should address is the process through which an individual member of the governing body can get the rest of the body’s support when submitting a records request.

Consider this scenario: Member A asks for a lot of records about a project. Staff estimates that it will take 20+ hours of staff time to gather these records, is concerned about the request affecting their workload, and declines to provide them. This is relayed to Member A who, nonetheless, still wants the records. Member A could make a motion at the next meeting to formally request that staff provide a report to the governing body which includes those records. If the governing body adopts the motion, that then becomes a direction from the body to the administration that staff should comply with.

In addition, some agencies have policies under which an elected official’s public records request needs to be reviewed by the chief executive officer to see if there is an official purpose. Some policies also require agency staff to provide any responsive records to other members of the governing body so that everyone has the same information.

Official business — staff

Upon receipt of a request for records from a staff member which does not cite to the PRA, the records officer can (and likely should) ask how the records request relates to the requestor’s official duties. Sometimes it will be obvious that the request is job related. For example, an engineer might ask for a copy of all records related to a project they are managing. But this same engineer may not have a business need to ask for copies of the city attorney’s calendar for the last three months.

Figuring out if this is an official request or a personal one does not need to be confrontational (no screechy violins)! If there’s no official purpose, that just means that the employee will need to file a PRA request for the records, and the request will be subject to the provisions of the PRA.

If the request is for an official purpose, does any information in the records get redacted?

Maybe. If the information contained within a record would be exempt from disclosure in response to an public records request, but not confidential, then the agency can consider disclosing it since there is not a legal prohibition on disclosure. But in that case, I recommend reminding the person who requested the records that they should not disclose these outside the agency unless there is a public records request, and the records have been through the review process.

One option in making records publicly available is to redact them as if they were being provided in response to a public records request. For example, if the governing body is considering an appointment to fill a vacancy and has asked that resumes be provided in the agenda packet, addresses and phone numbers of the applicants can be redacted.

On the other hand, dissemination of confidential information, such as juvenile offense records or medical records, is prohibited unless specifically authorized by statute. Therefore, confidential information should be redacted from records provided to elected officials or agency staff unless there is a legal basis for disclosure of that confidential information. An agency should consult with its legal counsel when in doubt about how to proceed.

Don't Fight It! (Even When the PRA Does Not Apply)

What happens when an elected official or staff member insists on filing a PRA request even if they are otherwise entitled to the records?

Sometimes you have to pick your battles. Unless a different statute directs how requests are handled, staff should process the request under the PRA. Staff may want to tell the requester that that if the request is processed under the PRA, it is subject to the timelines, costs, and redactions in the statute. If the person still wants to proceed with a PRA request, staff should process it under the PRA.

Happily Ever After?

Unlike my movie example, internal requests do not need to end in a horrible way. Clear rules and expectations will help. Also, being flexible and responsive in communication with requesters can turn what might otherwise be an acrimonious situation into a well-managed exchange of information.