PRA Performance Audit: Comparing Washington’s PRA to Other States

This blog post is the second in a three-part series analyzing the State Auditor’s Office’s (SAO’s) PRA performance audit: The Effect of Public Records Requests on State and Local Governments. Click the following for Part 1 or for Part 3.

In my recent PRA Performance Audit: The Costs of Fulfilling PRA Requests blog post, I focused on the SAO’s audit findings related to the costs incurred by public agencies in responding to records requests. This blog post will focus on another aspect of the SAO’s audit: approaches other states and the federal government have taken with their public records laws. In the upcoming weeks, I will post a final blog in this series outlining steps that Washington’s public agencies can take to make their records management and production more streamlined.

The SAO’s audit compared Washington’s PRA with the public records laws of eight other states and the federal government. The audit provides an overview—including a helpful chart—of the similarities and differences of the various approaches of the profiled states with regard to a variety of public records issues.

Here’s how Washington State measures up in some of the areas reviewed by the SAO:

Charging for Staff Time 

Washington and Pennsylvania are the only two states reviewed that don’t allow an agency to charge for staff time incurred in responding to records requests. The other six states and the federal government allow a charge for staff time, but with some limitations:

• Some allow a charge only after a certain amount of time has been spent by staff in fulfilling a records request. For example, Florida allows a charge after staff has spent 15 minutes on a request, Utah and Vermont allows a charge after 30 minutes, and the federal government after 2 hours.
• Some establish the rate to be charged. For example, Vermont’s charge ranges from $0.33–$0.57/minute, Massachusetts and Utah use the rate of the lowest paid employee qualified to respond to the records request, and Illinois sets a $10/hour rate for commercial requests.
• One state allows charges for some attorney time. Specifically, Oregon allows a charge for attorney time spent redacting and segregating exempt and non-exempt records, but not to determine applicability of exemptions. 

Charging for Electronic Records 

Four states expressly allow a charge for electronic records. Washington does not specifically call out charging for electronic copies in the PRA, but it also doesn’t appear to prohibit a charge. (Note, that the City of Seattle is charging a fee for providing electronic copies.) Other states allow electronic charges as follows:

• Florida: Can charge a fee for remote electronic access.
• Illinois: Fees ranging from $20–$100 based on megabytes, but only for voluminous requests.
• Pennsylvania: Charges allowed for “enhanced electronic access,” and can be: a flat rate, a subscription fee, a per-transaction fee, or another reasonable method.

Extra Charge for Commercial Purpose

Three states and the federal government allow an extra charge if the request is for a commercial purpose. Washington—as well as the five other states reviewed—does not.

Alternative Dispute Resolution

Washington’s PRA requires that each agency provide an administrative review process within the agency for denials of requests. In addition, the Open Government Ombuds in the Washington State Attorney General’s Office (AGO) answers questions from citizens and agencies regarding PRA compliance, develops PRA model rules, and provides general PRA guidance and training. Under RCW 42.56.530, The AGO can also issue opinions on exemptions cited by state agencies.

Unlike other states, however, Washington does not have an alternative dispute resolution (ADR) process through which PRA disputes can be formally heard as an alternative to going to court to settle a dispute with a requestor. The other states reviewed by the SAO provide a variety of alternative methods, including voluntary mediation programs, administrative appeal hearings, and issuance of binding and non-binding opinions. (See, e.g., Florida, Illinois, Minnesota, Pennsylvania, Utah, and the federal government.)

It’s worth noting that Washington may be close to adopting an ADR program for the PRA. A Public Records Act Work Group convened by several state legislators is currently looking at various PRA issues, one of which is an ADR process for PRA disputes. However, it’s also worth noting that the Legislature has looked at adopting an ADR program several times in the past, but has failed to do so. (See HB 1017/SB 5339 (2009); HB 1784 (2009); HB 2736/SB 6383 (2010); and HB 1044/SB 5237 (2010).)

Final Thoughts

The SAO’s review of records laws in other states shows that there are different approaches to open records laws, some of which may make sense in Washington. Whether it be an ADR process or the ability for governments to recover some of the costs of staff time spent on responding to record requests, updates to the PRA could improve the records request experience for both requestors and agencies, while maintaining the goal of government transparency.

Have a question or comment about this information? Want to see a blog post related to a different aspect of the PRA or on another topic? Let me know below or contact me directly at fcollins@mrsc.org.