Recent Court Guidance on What Constitutes a Public Record under the Public Records Act

One of the legal issues most frequently faced by local government officials and staff in Washington state relates to compliance with our state’s Public Records Act (PRA), chapter 42.56 RCW. In this post, I’ll briefly discuss a court decision I think is significant on the threshold PRA issue – what is and what is not a public record.

While it is often clear what is a public record under the PRA, less clear and sometimes overlooked is what is not a public record. Under the PRA, “public record” is defined in RCW 42.56.010(3), in relevant part, as:

... any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. ...

(Emphasis added.)

In addressing this threshold PRA issue of whether a record is a public record, Washington courts have broadly interpreted this definition in RCW 42.56.010. In the decision I alluded to above, West v. Thurston County, 168 Wn. App. 162 (2012), the court applied a helpful analysis regarding what is, and what is not, a public record under the PRA.

In West, the records at issue for our purposes here were attorney fee invoices prepared and submitted by attorneys appointed by the county’s risk pool to represent the county’s interests in litigation matters. The county had a $250,000 deductible with the risk pool. The invoices were never provided to the county because they were for amounts greater than the county’s deductible. The invoices were properly submitted to and paid by the risk pool.

The court held that the records were not public records based upon the particular facts at issue. In so holding, the court analyzed the four ways a record may constitute a public record under the PRA:

(1) Were the records prepared by the agency? The requestor of the records argued that because the attorneys were appointed by the risk pool, those attorneys were “agents” of the county, and that, therefore, the county (acting through its agents) “prepared” the invoices. The court disagreed, holding that, although the attorney-client relationship generally is a type of principal-agent relationship, the fact that an agent of the county prepared the records does not automatically make the records public records under the PRA. The court focused on the term “agency” in the context of RCW 42.56.010 and held that simply because the “writings” at issue (i.e., invoices) were prepared by the county’s insurer-appointed attorneys does not mean that those records are automatically public records if the agency never physically possessed the records.

(2) Are the records owned by the agency? The court adopted the definition of “to own” used in a previous PRA decision, O’Neill v. City of Shoreline, 145 Wn. App. 913, 925 (2008), which defined it as “[t]o have or possess as property.” Based upon that definition, the court found that the county did not “own” the invoices that exceeded the county’s $250,000 deductible because the county did not receive the billings, did not pay the billings, and did not have responsibility to reimburse the risk pool for any payments made toward the billings.

(3) Were the records used by the agency? Relying upon Concerned Ratepayers v. PUD No. 1, 138 Wn.2d 950 (1999), the court in West explained that the key issue is whether the requested information bears a nexus with the agency’s decision-making process, and that mere reference to a document that has no relevance to an agency’s conduct may not constitute “use” of that record. Rather, a record that has “information that is reviewed, evaluated, or referred to and has an impact on an agency’s decision-making process would be within the parameters of the [PRA].” West, at 185, quoting Concerned Ratepayers, at 961. The court in West held that the invoices that exceeded the county’s $250,000 deductible were not “used” by the county because the county did not receive those invoices, and because there was no evidence the county reviewed, evaluated, referred to, or otherwise considered those invoices in its decision-making process. In other words, there was no showing the invoices at issue had a “nexus” with the county’s decision-making process.

(4) Were the records retained by the agency? Relying upon a dictionary definition of “retain” – “to hold or continue to hold in possession or use” – the court concluded that, because the county never possessed or used the invoices, it could not have held them “in possession or use” so as to have “retained” them.

In summary, the court in West v. Thurston County held that the attorney invoices at issue were not public records because they were not prepared, owned, used, or retained by the county. As explained above, I think the court’s analysis is helpful and insightful in addressing the threshold issue that is, at times, overlooked – is the record a public record under the PRA?