Chronic Requesters and Problem World of the Public Records Act

Chronic Requesters and Problem
Requests: How to Cope with the Real
World of the Public Records Act
Jeffrey S. Myers
Law, Lyman, Daniel, Kamerrer & Bogdanovich
P.O. Box 11880
Olympia, WA 98502
(360) 754-3480
E-mail: [email protected]
March 21, 2013
Types of Chronic Requesters
1. Watchdogs
• Overcoming Paranoia
and suspicion of
– Usually focused on
specific issue, incident or
– Want to see everything
Frequent Fliers - Watchdogs
Arthur West
Anne Block
Ira Appelman
Mike Belenski
David Koenig
• Every community has
at least one…
Types of Chronic Requesters
2. Media requests
• Similar to Watchdogs
• Sensitivity to Deadlines
– Not have to wait 5 days to respond.
– More willing to focus request
• Resources to litigate substantial noncompliance
• Ongoing relationship needed on both sides
Types of Chronic Requesters
3. Employee Requests
– Issues affecting themselves
– Issues affecting co-workers
– Distinguish Public Records Requests from requests
for own personnel records. RCW
– Distinguish from requests in grievance process.
Germeau v. Mason County, 166 Wn.App. 789 (2012)
– Watch out for CBA issues and retaliation claims!
Types of Chronic Requesters
4. Prisoner / Inmate Requests
• RCW 42.56.565 Provisions
– Must respond in good faith
– Diminished liability for
– Injunction allowed for
threatening requests
Types of Chronic Requesters
• The Vindictive Requester
• Motivated by disagreement
with Agency policy, decision
– All e-mails between 2 members
of the Board of Commissioners
– All e-mails between staff and 2
members of BOC
• Lawsuits Will Follow
• Will ignore your needs and
demand instant compliance
Tips for Vindictive Requesters:
• Take the high road – Be Nice!
Have the “right” person handle request
• Make sure you know who else at your
agency is talking to the requester
• Try to figure out the “real reason” they are
• Get help addressing the underlying issue
• Communicate in Writing?
Follow procedures to the letter
Recurring types of problem requests
• Hidden Requests –
• Arthur West request to LOTT – Attended
public meeting on Port and waterfront
development. Put records request on note
cards collected to receive public ideas and
• West v. Gregoire – West sent memorandum
• Last paragraph asked for “all records of
communications between the Office of the
Governor and WSAC from 2007 to the
Recurring types of problem requests
• Techie Requests – Data logs - Neighborhood
– Internet access logs
– Cache files
– Metadata
– Electronic Records
– Social Media
Recurring types of problem requests
• Metadata – What is it? How
do I provide it? How do I
redact it?
• O’Neill v. City of Shoreline
– Requesters must specifically
ask for metadata
– Considered part of the
electronic record
Social media as public record
• CBH Columbia Basin Herald Local News
• Posted: Thursday, March 14, 2013 9:00 am
• By Joe Utter, Herald staff writer
• Any posts on social media sites like Facebook and Twitter through
government accounts becomes public records. This includes any
comments made by the community. It also includes any posts on
government employees' personal accounts relating to government
• As an example, Grant County Sheriff Tom Jones posted his letter
supporting the Second Amendment on his personal Facebook page
on Feb. 25. Any comment added by Facebook "friends" becomes
public record.
Social media as public record
• Is this an unconstitutional infringement on
Sheriff’s First Amendment Rights?
– Free Speech
– Free Association
• Can a public employee have private discussion
about public business?
Recurring types of problem requests
• Asks for identifiable records, but by extremely
broad categories
– All records from Olympia Police Department for
– Chen v. Medina – all records regarding Chen / police
chief position for 8 years.
Recurring types of problem requests
• What if I miss
– Does my search have to
be perfect?
– What if I Discover More
Documents After My
Response is Closed?
• Provide & Explain. WAC
44-14-040 (11).
Recurring types of problem requests
• Vague Requests
– Information Requests
– Requests based on false premise
• City of Toledo – “Document(s) relied upon
your agency, by which I may determine,
certifying in which or that your agency
believes Lewis County District Court Cause
#C5408 is contrary to malicious
prosecution. “
• Jefferson County- All records for which
there is no copy on a backup tape.
• All records about … blah, blah ,blah ,
Pinning Down the Vague Request
• Seek clarification– Ask Questions to bring into focus
– Purpose of request
– Types of records expected
Never Assume
• Use a first installment to test whether you
are on the right track
– “Is this what you were looking for? If not, let me know”
• Define your understanding of the request in your
terms and seek requester’s agreement with your
• Shift the burden to them to correct your interpretation.
• Be fair to the language and intent of the request.
Strategies to Cope
• Requester must request and
“identifiable” record. RCW 42.56.080
• Must provide sufficient information to
allow you to locate record.
• The PRA does not “require public
agencies to be mind readers.”
Bonamy v. City of Seattle, 92
Wn.App. 403, 409, 960 P.2d 447
• Clarification can also help narrow broad
requests, even if the scope request is
Strategies to Cope
• An "identifiable record" is not a request for
"information“ in general.
– For example, asking "what policies" an
agency has for handling discrimination
complaints is merely a request for
– A request to inspect or copy an agency’s
policies and procedures for handling
discrimination complaints would be a
request for an "identifiable record.“
• Public records requests are not
interrogatories. An agency is not required to
conduct legal research for a requestor.
Limstrom v. Ladenburg, 136 Wn.2d 595,
604, n.3 (1998).
Strategies to Cope
• Asking for Clarification
1. state your understanding in reasonable, yet
narrow terms
2. For broad requests, ask them to narrow by
relating to specific searchable fields
– add date range, subject,
– department, author, recipient
Strategies to Cope
3. Determine Requester
priorities: Ask if they are
looking for X, then provide X
and ask is it enough?
4. Refer them to your
agency’s index of records or
similar document and point
them in the right direction –
ask them to describe their
request in terms used by
the agency’s organization
Strategies to Cope
• Principles in approaching chronic
1. Be helpful – approach with
customer service attitude.
2. Requesters do not need to
ask for records by name.
3. You know how your records
are organized, the requester
does not. Educate him.
4. Make a record showing you
are being helpful – he may sue
you anyway.
Strategies to Cope
• Request may take significant time
to complete –establish a
relationship and to make
requester feel like you care.
• Frequent status updates are
• Keep your promises.
• Large Time Consuming Requests
– Do they really want to impose
that burden on the taxpayers?
Coordinated Responses to Difficult
• Sensitive requests – Does the PRO need to
know what’s going on?
Employment issues
Controversial projects
Litigation issues
Search Techniques for Difficult
• Develop Relationship with IT
• Personal Records – Beware the Dangers
of Working at home
• Document, Document, Document
• Saving your search queries • Follow-up on leads Neighborhood
Alliance requires reasonable search
where records are likely to be found.
Neighborhood Alliance v. Spokane
County, 172 Wn.2d. 702 (2011)
• The adequacy of an agency's
search is separate from the
question of whether the
requested documents are found.
• The adequacy of the search, in
turn, is judged by a standard of
reasonableness and depends
upon the particular facts of each
• Test: Did you search where
there is reason to believe that
the requested record is likely to
be ?
Neighborhood Alliance v. Spokane
County, 172 Wn.2d 702 (2011).
• Must inform requester in “general
terms” of places searched when
no records are located.
• If records destroyed, agency must
explain how destruction was legal.
• Possible claim for penalties for
inadequate search reserved.
Agency liable for attorney’s fees
and costs – requester deemed
prevailing party if search is
Use Installments
• How do I choose what to include in installments
– How are records organized?
– What is requester’s priority?
– Volume of requested records
• Provide what is easy, work on what is hard.
• Provide what is clearly public, take your time on what
needs closer review.
Use Installments
• First benefit: Good government –
Requester gets records quicker
• Second benefit: helps ensure you
are providing the records the requester
• Third benefit: If the requester
doesn’t pick up an installment, you can
treat the request as abandoned – but be
sure they really don’t want the records
because they could always re-make the
same request
• Statute allows but does not require agencies to request
deposit of 10% before making copies
• Effective to deter harassing requesters -- If requester only
wants to harass, then the requester most likely won’t want to pay
• Seek a deposit if history of non-payment or other reason to
think won’t pay
• Effective for large copying projects -- Requesting a deposit
also demonstrates to the requester how expensive copies will be,
which will avoid surprises
• Establish a threshold size for asking for deposits. Cost of
collecting and processing payment may exceed copying costs.
Injunctions under RCW 42.56.540 as a
possible remedy
• What is basis for asking for injunction?
– Disclosure clearly not be in the public interest
– Substantially and irreparably damage any person
– Substantially and irreparably damage vital governmental
• Is repeated requests enough to get an injunction?
– Harassment? Zink v. City of Mesa says no.
• Soter v. Cowles Pub. Co. – additional requirements
– Must show applicable exemption
– Risk of penalties for “denial” by seeking injunction
• Prisoner injunctions more successful. RCW 42.56.565.
Egan v. City of Seattle,
King Cty. Sup. Ct. 12-2-938-4 (2012)
• Seattle sued to enjoin request for police
dash-cam videos restricted by RCW
• Requester filed anti-SLAPP special motion to
strike under RCW 4.24.510.
• Court denied anti-SLAPP motion despite
finding lawsuit “completely unnecessary”.
• Public Records Act provides both right to
request documents and right to seek
• Request does not involve “Public
participation and petition”. Must be
more than just making records request.
Future Issues in PRA Suits
• Does a suit to enjoin a public records
request involve “public participation
and petition”?
• Is filing a public records request an
exercise of constitutional free speech
– Houchins v. KQED, Inc., 438 U.S. 1, 15
(1978) (“Neither the First Amendment
nor the Fourteenth Amendment
mandates a right of access to
government information or sources of
information within the government’s
5 Things You Need to Remember
about the Public Records Act
#1 Open Government:
Sound Policy
Purpose of Public Records Act
RCW 42.56.030:
The people of this state do not yield
their sovereignty to the agencies that
serve them. The people, in delegating
authority, do not give their public
servants the right to decide what is
good for the people to know and what
is not good for them to know. The
people insist on remaining informed so
that they may maintain control over
the instruments that they have
created. This chapter shall be liberally
construed and its exemptions narrowly
construed to promote this public policy.
#2 Open Government:
A Legal Mandate for Everyone
Here’s a story…
about an electrical inspector . .
Who issued a citation to a former
contractor …
• Who made a public
records request …
• That got stashed in
the file…
For over a year …
The inspector thought it wasn’t his
problem. . .
• The contractor requested “a copy
of all permits issued and copies
of inspections and correction
requests by all inspectors on that
• The inspector did not provide the
contractor with any records. . .
• nor did he forward the request to
the public records unit or his
supervisor. . .
Until the lawsuit was filed. . .
• Contractor filed a
lawsuit under the PRA
on July 22.
• The public records unit
responded by providing
16 documents on
August 8.
• On November 7, they
provided 3 signed
versions of the August 8
But it was too late
• Agency conceded liability for
violating Public Records Act.
• Trial Court Judge hammered the
– No intentional noncompliance
– No bad faith in agency’s actions,
– Key factor was the lack of
governmental accountability.
– No mitigating factors to excuse
agency’s lack of compliance.
– Imposed $90 per day penalty
– For each of the 16 records withheld
through August 8
– $10 per day penalty, per record for
each of the 3 other documents
Bricker v. Labor & Industries,
164 Wn.App. 16 (2011)
• Trial Court reconsidered per
record penalty
• Reduced penalty to
• Both sides appealed!
• Appeals Court affirms.
• RCW 42.56.040 –
Agency must Publish:
– Agency Organization
– Operating Procedures
– Procedural Rules
– Substantive Rules &
Policy Statements
– Amendments to Rules
• Have a Plan!
• RCW 42.56.100
– Agency Rules to adopt
“reasonable rules”
– Provide full access to records
– Protect Records from damage &
– Prevent excessive interference
with essential agency functions
– Provide fullest assistance to
inquirers and most timely
possible action on records
– Priorities for responding to
Records Requests – Queue
Set Expectations About How Request Process Works and How You
Will Respond
Agency Policies & Procedures
• Agency should adopt specific procedures to
specify request process.
– Who submit records request to?
– When (regular business hours)
– How (written request or agency form)
• E-mail or mailing addresses where requests can be sent
– Contact Information for Response
– Format for Records Response
• Review or Copy of Record
• Electronic Format
• Redacted records do not need to be provided
electronically. Mechling v. Monroe; Mitchell v. DOC
Proactive Management Policies
• City of Pasco Adopts Resolution 3460 on March 4, 2013
– processes “complex” and “routine” requests. 50% of time for Records
Requests spent on complex requests, 50% on “routine” requests
– Factors to determine “complex” vs. “routine” are:
(1) the general, expansive or all inclusive nature of the request;
(2) the number of departments involved;
(3) the location of records and available method of searching records;
(4) the potential number of records implicated;
(5) the rights of third parties;
(6) the need for clarification of the request;
(7) administrative tasks necessary to process the request;
(8) the time needed to review documents for applicable exemptions;
(9) the need for legal review of the public records request;
(10) the format of relevant records; and
(11) other relevant circumstances
• Allows continued processing of specific requests while progress on large
multi-year requests.
Effective Use of Web Sites
• Trend for future: Direct Electronic Access to common
records via internet
– Direct access reduces number of requests.
– Demonstrates transparency and accountability.
– Reduces cost to public and costs to agency for its search time.
• City of Tumwater Records Center:
#4 Effective Use of Web Sites
• State Auditor’s Best Practices Recommendations:
Contact info for Public Records Officer
Electronic Public Records Request Form
Link to Agency Public Records Policy
Link to Public Records Act
Link to Exemptions List
Link to On-line resources (AGO Rules)
Cost Information
Ability to electronically submit records requests
Ability to electronically access commonly requested records
Response with referral to web page to access document
instead of copied documents.
#5 Training, Training and More
• AGO Model Rules recommend on-going
• Auditor’s Report Findings:
– Lack of understanding of Act and Model Rules
impacts timeliness of responses.
– 18 of 30 entities identified training as critical to
successful response to Auditor’s requests.
– Lack of training contributes to excessive redaction
and withholding of records, particularly due to
privacy concerns.
#5 Training, Training and More
• Training / Lack of Training directly affects amount
of Penalty Assessments.
• Yousoufian v. Sims – Lack of training led to “grossly
negligent” response:
Inadequate search
Looking in wrong place for records
Inaccurate & false responses.
No tracking or documentation of response.
Establishes training or lack thereof as factor in
determining amount of penalties
Legislative Report
SHB 1128 - Injunctions
Allows local governments to seek a civil injunction
for a public record request if the request:
– if it finds by clear and convincing evidence that a request will
materially interfere with the work of the public agency;
– Would likely threaten the safety or security of local
government staff, family members of staff, or local
government facilities; or
– Would likely assist criminal activity.
Establishes a summary court proceeding for seeking
and obtaining an
injunction against a public records request as
authorized by this section.
Exempts requests made by the news media from
being enjoined
authorizes attorneys' fees, not to exceed $15,000,
against a local agency if injunction request was
filed in bad faith or is frivolous;
SHB 1128 - The “Gold Bar” Solution
• Authorizes agencies to adopt a
policy limiting the number of hours
they devote to responding to
public records requests, if the
agency makes certain documents
publicly available and meets other
• Sets Minimum amount of time that
a local agency, other than one
without full-time staff, may spend
responding to record requests
under any policy limiting the time
it spends responding at "12" hours
per month.
• Authorized under current authority
to adopt rules concerning records
process in RCW 42.56.100.
House Leadership kills SHB 1128
• Leadership refuses to put bill on floor for vote
despite majority support from members.
Confidentiality of Juvenile Records
• SHB 1651 - Provides that
juvenile offender records are
confidential unless the
juvenile has been adjudicated
for a sex offense or a serious
violent offense or other listed
violent crimes; the court may
release juvenile records for
inspection upon good cause
• Provides that juvenile
offender records may not be
published, distributed, or
• Passed House 97-0.
Other bills still alive
• Sunshine Committee bill – SHB 1298
• SHB 1418 - Cities and
• Passed House 97-0
towns, requirements
• Clarifies what information resulting from
when holding office hours background checks of a guardian ad litem
for fewer than 30 hours:
may and may not be disclosed to the
parties in a parent-child termination
Must post directions on
how to make a public
• Makes changes to exemptions from public
records request. Pass
inspection and copying related to
House 98-0
personal information contained in agency
files, and examination reports obtained
by the Washington Pollution Liability
Insurance Program.
• Changes the exemption from disclosure
relating to the identifying information of
child victims of sexual assault to be
• Adds an exemption from disclosure for
information contained in a local or
regionally maintained gang database.