Attorney General's Office Public Records Act Training

hi I'm Bob Ferguson your attorney-general with me in this video is the Open Government Assistant Attorney General Nancy career this training video provides a basic overview of our Public Records Act for both records requesters and state and local agencies it's intended to provide greater understanding of the legal requirements around the Act the Public Records Act is a law created by an initiative vote of the people in 1972 which provides the public access to the records of government agencies it receives 72% of the vote the purpose of the Act is to provide the public full access to information concerning the conduct of government mindful of individuals privacy rights and fulfill the desire for the efficient administration of government the law is based on the principle that open government is essential to a free society all state and local agencies must comply with the Public Records Act all public records must be disclosed unless a law exempts records or information there are well over several hundred exemptions some of those exemptions are listed in the Act but many exist in other state and federal laws the Act is a broad mandate interpreted in favor of disclosure and its exemptions are narrowly construed this training presentation is based on the Public Records Act and the Attorney General's advisory model rules the rules are online at the Attorney General's website at WWE they provide examples of steps to comply with the Public Records Act an agency may adopt any part of the model rules into its own rules local agencies should consult the model rules when establishing local Public Records Act ordinances the model rules provide comments that are useful for interpreting the Public Records Act and for training agency personnel the model rules are non-binding but they are based on extensive outreach court decisions and have been cited favorably in some court cases this training video was prepared in the fall of 2017 the model rules were being updated in 2017 the legislature also amended the Public Records Act in 2017 and the legislature can amend it again in the future the courts can also interpret the Act consequently and as a reminder there may be developments in the law after this video was prepared several updates on the law are often posted in materials on the attorney general's office website on the open government training page a PowerPoint on that page also provides training on the Public Records Act this training video contains 16 short segments where we will review history purpose and intent of the Public Records Act scope of the PRA general obligations of an agency what is a public record requests for records initial agency responses reasonable estimates adequate searches disclosure electronic records managing broad requests exemptions and withholding fees other Records provisions liability and finally additional resources you have just heard from the Attorney General about the history purpose and intent of the Act the Act regulates the disclosure of public records the Act requires disclosure of public records unless a law permits withholding of a record or part of a record the Act has many components and compliance requires training training can be the difference between a satisfied requester and expensive litigation the Act applies to both state and local agencies a state agency includes every state office department Division Bureau board and Commission a local agency includes every County City Town Municipal Corporation special purpose district and other forms of local government in some cases an entity which is not an agency can still be subject to the act when it is the functional equivalent of an agency this determination depends on whether it performs a government function receives government funding the extent of government involvement or regulation and whether the entity was created by government courts are not subject to the act agencies must appoint a public records officer responsible for being a point of contact for the public and for overseeing compliance the name and contact information of the public records officer should be published with information on how to submit requests for records the public records officer must have received training on the act within 90 days of assuming his or her duties agencies must also publish information on the agency organization rules and procedures and an index of specific categories of Records agencies are required to adopt reasonable rules to provide full public access to public records to protect public records from damage or disorganization to prevent excessive interference with other essential functions of the agency and to provide the fullest assistance to inquires agencies may wish to consult with their attorneys when developing their rules and procedures a public record is any writing relating to the conduct of government which is prepared owned used or retained by any state or local agency regardless of physical former characteristics it could be an email text message paper letter or memo an audio or video recording a picture image map or any recording of information or data compilation from which information may be obtained or translated a public record is not just what an agency creates but includes documents created by citizens or private companies that are used or received by a government for a governmental purpose a public record may also include documents not possessed by the agency but which were used by the agency for example the courts have described at work documents on the personal computer personal cell phone or personal email account of an agency employee or official are subject to request under the Public Records Act records of certain volunteers are excluded from the definition of public record records are excluded when they are not otherwise required to be retained and 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 any person wishing to inspect or copy public records of an agency should submit the request to the agency preferably in writing using the agency's request form the Public Records Act doesn't prescribe any official format for a valid request so an agency must honor valid requests for identifiable records regardless of the format of the request while using an agency's form is not required it is typically the most efficient way to submit a request a requester who chooses not to use an agency form must give the agency fair notice that he or she is submitting a request for public records agencies are required to honor requests received in person during an agency's normal office hours or by email if an agency has a did reasonable rules on how requests should be submitted the agency may rely on those rules the agency should be helpful to the requester in explaining how requests should be submitted and to home records shall be available for inspection and copying upon request for identifiable records so requesters should give a reasonable description of the records enabling the agency to search for potentially responsive records a request for all or substantially all of an agency's records is not a proper request for identifiable records a request regarding a particular topic or containing a particular keyword or name shall not be considered a request for all of an agency's records a request for information is not the same as a request for public records the Public Records Act does not apply to requests for information there is no duty to create a record that does not exist in order to fulfill a request for records or information however requests for information are at times easier to fulfill fulfilling a request for information may avert a large public records request an agency must promptly respond to public records requests within 5 business days of receiving a request an agency must respond an initial response may be any one of the following acknowledging receipt of the request in providing a reasonable estimate to respond or fulfilling the request or providing an Internet address and link to the records on the agency's website or seeking clarification while also to the greatest extent possible providing an estimate of time for further response if the request is not clarified or denying the request with an accompanying written statement of the specific reasons reasonably clear request for identifiable records may require no clarification however some requests are unclear seeking clarification permits the agency to identify responsive records which in turn will aid in determining the scope of the request clarifying a request provides the fullest assistance to the requestor so that the requester receives and pays for only those copies that are desired clarification may also result in prompt disclosure by identifying only those records desired an agency should not seek clarification if the request is for identifiable records and is reasonably clear if the entire response is unclear and the requester fails to respond to the agency's request for clarification the agency need not respond to it however the agency must respond to those portions of a request that are clear an agency may deny a bot request which is a request that was automatically generated by a computer program or script when it is one of multiple requests from the requester received within a 24-hour period the agency must establish that responding to the bot request would cause excessive interference with other essential agency functions a requester is typically not required to provide the reason for a request unless a law necessitates additional information from the requester agencies and requesters are encouraged to promptly communicate with each other if there are issues regarding a request an agency's initial response to a public records request must provide a reasonable estimate for the time to respond when more time is needed a reasonable estimate should account for many factors including the time to have the request to clarify the request if needed as well as time to assemble and review the records provide notice to affected persons or agencies if needed to redact exempt information and to create a withholding or exemption log an agency should not use the same estimate for every request rather each reasonable estimate should be based on factors such as the complexity of the request other pending requests agency resources and other agency essential functions it's a good practice for an agency to briefly explain to the requester the basis for the estimate in the initial response extending the estimate is appropriate when circumstances have changed or additional information has come to light agencies are encouraged to briefly explain the need to revise an estimate an agency bears the burden of showing that its search was adequate consequently agencies should be able to document how a search was conducted and for example what search terms it used as well as the location searched an adequate search depends on the facts of each request but it is one that is reasonably calculated to uncover all responsive documents in whatever form paper or electronic an agency must make more than a perfunctory search and follow obvious leads as they are uncovered the search should not be limited to one or more locations if there are additional places where responsive records are likely to be found if responsive public records are likely to be found on or in an agency employees or officials personal device or account the employee or official must search those devices and accounts for responsive records it is possible to conduct an adequate search and still not locate a responsive document however if a responsive record is not located and or if challenged in court the agency will have to prove its search was adequate an agency must make records available during its customary office hours for a minimum of 30 hours per week public records are presumed to be open for inspection and copying unless a specific law exempts the record or information from disclosure agencies can deliver copies of records to a requester in a number of ways such as providing links to the records that are on the agency's website providing paper copies of paper records or scanned copies of paper records by mail or making them available for pickup or providing electronic records by various methods you may recall that with respect to what is a public record the Public Records Act is not distinguished between paper and electronic records most agencies create records in an electronic format a copy of an electronic record should be produced in the requested electronic format if reasonably feasible translating a record into an alternative electronic format at the request of the requester or scanning a paper record is not creating a new record metadata is information embedded in a document that provides detail about the documents characteristics this may include information such as when the document was created edited recipients and so forth non-exempt metadata must be disclosed when expressly requested when agencies obtain new technologies they should consider not only the agency's business operation needs but also records retention and disclosure requirements examples of such technologies are portals through which records can be requested and delivered electronic redaction tools or retention software just to name a few in addition agencies can look at whether they could make use of their current technology more robust the legislature encourages agencies to make public records widely available electronically particularly commonly requested records for example an agency could make commonly requested records available on its website then as noted earlier an agency could fulfill its obligation to provide access to a public record by providing a requester with a link to a specific agency web page containing the electronic copy of the requested record for requesters without access to the Internet an agency could provide a computer terminal at its office agencies should develop policies addressing technology concerns such as if and when agency employees may use personal devices for public agency uses and what responsibilities and requirements therefore attach to the employee an agency may receive a broad request that asks for any and all records related to a topic agencies may not deny a request solely because it is overly broad as noted a request for all or substantially all of an agency's records is not a valid request but a request for all records regarding a particular topic or containing a particular keyword or name is not a request for all of an agency's records after an initial search shows there are potentially hundreds or thousands of different types of responsive or potentially responsive records a public records officer should contact the requester to explain the estimated total number of records that would need to be searched or provide other information describing the anticipated scope of the search then the agency could seek clarification to ask if the requester wants all of the different types of responsive records and is willing to pay for all the copies or instead if the requester is seeking only some of the records good communication can assist both the agency and the requester a broad request will usually result in a longer estimate of time for disclosure as well as producing records in batches or installments when seeking clarification to the greatest extent possible the agency must provide a reasonable estimate of time the agency will require to respond to the request if it is not clarified in many instances a requester will narrow the scope of the request to enable the agency to provide disclosure more promptly and less expensively an agency may manage broad requests in a couple ways an agency may require a deposit in an amount not to exceed 10% of the estimated cost of providing copies for a request if an agency makes copies in response to a request available on a partial or installment basis the agency may charge for each part of the request as it is provided if an installment of a records request is not claimed or reviewed the agency is not obligated to fulfill the balance of the request finally use of electronic technologies to search review redact and disclose public records can reduce overall costs of compliance for agencies agency response is denying in whole or in part inspection or copy of any public record shall include a statement of the specific exemption authorizing the withholding of the record and a brief explanation of how the exemption applies exemptions exist throughout the Public Records Act and other state and federal laws common exemptions include information such as personal information and files maintained for agency employees if private pending investigative files compiled by law enforcement or agencies with authority to discipline members of a profession the non-disclosure which is essential to effective law enforcement or for the protection of any person's right to privacy educational records of students in public schools attorney-client privileged information or work product related to litigation or protected health care information there is no statute providing a general privacy exemption if privacy is an express element of a specific exemption it is only invaded if disclosure would be both highly offensive to the reasonable person and also not of legitimate concern to the public exemptions in the Act must be construed narrowly the general rule is that an agency read acts or with holds only the exempt information and produces the non-exempt information an acceptable way of providing this information to the requester is with a withholding index often called an exemption log the information provided as part of the log should include a description of the type of record or part of record denied the description should include identifying information from the document for example whether the document is a letter or email the date the document was created or other relevant date the total number of pages and the sender and recipients the exemption log must also include the statutory authority making the information exempt and a brief explanation of how the exemption applies some of this information will be evident on the face of the document where redactions have been made to only part of the document an exemption log the written explanation also may be provided in different formats for example maybe handwritten or compiled in a spreadsheet or chart or in a letter or redactions are marked on the records with exemption codes and the requester is given the key to the codes the format of the exemption log or exemptions is not relevant so long as the required information is provided any person may inspect non-exempt public records for free an agency may not charge for the time of staff to search review or redact public records when preparing them for inspection if a requester wants copies of records an agency has options to charge for copies it can charge actual costs or it can charge default fees listed in the Public Records Act or can charge an alternative up to $2 fee for an entire request some other provisions may be relevant to in order to charge actual costs an agency must make available for public inspection and copying a statement of the actual per page or other costs and how it determined actual costs an agency may adopt its statement of actual costs only after providing notice and a public hearing when calculating fees the agency must use the most reasonable cost efficient method available to the agency staff time to copy and deliver the requested public records may be included in an agency's costs but an agency may not include staff salaries benefits or other general administrative or overhead charges unless those costs are directly related to the actual cost of copying the public records an example of what an agency may want to charge for the actual costs of staff time is where an agency scans paper records and copies them into an electronic format the charges should be reasonable and related to the wage of the person likely to be repeatedly assigned to this tab if an agency does not have staff available to make copies for non-exempt records an agency may send a scanning or copying project to an outside vendor and pass on the actual cost to the requester electronic copy costs may include the actual cost of the electronic production or file transfer of the record the use of any cloud-based data storage processing service and the cost of transmitting electronic records including the use of a physical media device a second method to charge copy costs is for an agency to choose to use a statutory default fee schedule provided in the Act in that case an agency need not calculate actual costs if it has rules or regulations declaring the reasons doing so would be unduly burdensome the statutory default fee schedule lists for example per page costs for paper records scanned records and costs for electronic records as yet another alternative an agency can assess and up to two dollar flat fee for an entire request when certain conditions are met the Act includes other fee provisions for example an agency cannot charge for access to or downloading of records it routinely posts on its website prior to the receipt of a request unless the requester is specifically asked that the agency provide records through other means an agency may impose the actual cost of a customized service charge when the request would require the use of IT expertise to prepare data compilations or when such customized access services are not used by the agency for other business purposes the agency must notify the requester and take other steps if it chooses to do a customized service an agency can require in advance ten percent deposit before making copies an agency may enter into a contract Memorandum of Understanding or other agreement with a requester for an alternative fee arrangement or in response to an extensive or frequently occurring request an agency may choose to waive any charge to it too agency rules and regulations upon request an agency must provide a summary of the applicable charges before making copies the requester then may choose to revise the request to reduce the number of copies and the cost in sum the Public Records Act provides an agency several options for assessing charges for copies the choice is selected may vary from agency to agency under a different law the records retention laws at RCW 40-point 14 agencies must maintain a log of public records requests including for each request the identity of the requester if provided date of receipt text of request description of Records produced description of Records redacted or withheld and the reasons for doing so and the date of final disposition with respect to the identity of the requester it is possible an agency received only an email address from the requester and if so that address would be included in the log the logs must be retained per the agency's records retention schedule and are a public record the records retention law also provides that agencies spending at least $100,000 to fulfill requests during the prior fiscal year must report 17 data points about their PRA requests to the joint legislative audit and review committee under the Public Records Act any person having been denied an opportunity to inspect or copy a public record may seek further review in the agency the person may also file a lawsuit to enforce his or her right to access public records a requester can also file a lawsuit if he or she believes that an agency has not made a reasonable estimate of the time or of the charges to provide public records such a lawsuit is to be filed in a court within one year of an agency's final definitive response to a request such as a final claim of exemption or the last production of public records on Stallman basis the agency has the burden of proof to demonstrate that public records were lawfully denied or its estimates were reasonable if it does not make this showing an agency will pay the requesters reasonable attorneys fees and costs and may pay potential penalties for denying records in violation of the Public Records Act a court will consider mitigating and aggravating factors in determining a penalty amount lawsuits for public records can be extremely time-consuming and expensive for agencies understanding and correctly applying the law is a good risk management tool for state and local government in rare cases individual employees may also be civilly or criminally liable under other laws state agency employees and state officers are subject to the ethics and Public Service Act it is a violation of that state ethics law for a state employee or officer to intentionally conceal a public record required to be released under the Public Records Act state agency employees and officers may be fined up to $5,000 per violation of the state ethics law it's also a crime for any agency officer to willfully mutilate destroy conceal erase obliterate or falsify any record of that agency's office except where the logs Presley authorizes the non-disclosure or destruction of records the crime is punishable by imprisonment of up to ten years or a fine of up to $5,000 or both thank you for participating in the Attorney General's open government training for more information there are available resources for agencies to receive training and technical assistance for compliance with the Public Records Act an employee should first consult with its agency's public records officer for routine assistance or training additional resources are listed on this website the assistant attorney general for open government is also available to provide information about the Public Records Act thanks again for watching you

Channel: WashingtonAGO

Views: 19,310

Keywords:

Id: Gcm1tue16Qk

Length: 30min 10sec (1810 seconds)

Published: Thu Oct 12 2017