Exemptions - Black and White? or Shades of Gray?

Exemptions. They are the vexing challenge of Public Records Work. While some (such as social security numbers) are very obvious, most applications contains shades of gray.

There are many comprehensive lists of exemptions floating around. These are long lists of RCW or other legal code citations. If you peruse them you will find loooong lists of seemingly specific information that should be protected. RCW 42.56.210 - 42.56.550 is a great example. The catch is these are often not as simple in their applications as they appear. 

One of the most commonly cited exemption that fits this description is RCW 42.56.240(1) - also known as the 'active investigation' exemption. It reads:

The following investigative, law enforcement, and crime victim information is exempt from public inspection and copying under this chapter:
(1) Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy;

The key words are "essential to effective law enforcement". A common description of what this is applied to is records contained in an active, on-going criminal investigation – this is a “categorical” exemption, meaning the records are exempt as a whole in their entirety. Some agencies have applied this exemption sweepingly, others very strategically. 

White vs. City of Lakewood (2016) provides a note of caution. The Court of Appeals, Division 2 wrote: An agency citing a categorical exemption from disclosure based on effective law enforcement exemption “does so at its own risk” because the exemption covers investigations that are “open and active.” In other words, if you are going to claim this, it had better actually be open and active. 

This is one of the easiest, most illustrative examples of the complexities in applying public records exemptions. In every class I have ever attended or taught, a request is made for black and white advice of when specific exemptions apply. And, inevitably, they are frustrated when the presenter answers their questions with vague answers. 

The reason for this is simple. Put four attorneys in a room, provide them with the question, and chances are you will get 2-4 different answers. At the end of the day, YOUR agency attorney will be the only defending the agency in court. And 95% of the time, the answer you seek is not black and white. 

Trainings will provide you with framework, guidance, and references. But they do not replace your own legal counsel. It is crucial that the agency attorney and the Public Records Officer have a close working relationship. Otherwise it could be real awkward to stand in front of a judge - or the media. 

-Whitney

What is a Public Record?

Sometimes the simplest questions can be the hardest. I get asked in nearly every class "what is a public record?" And with today's technology options, I'm not surprised. 

A 'public record' is defined by RCW 42.56.010(3) as follows:

“Public record” includes 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.

This RCW can be broken down into a handy acronym. P-O-U-R

P repared

O wned

U sed

R etained

If a record was prepared (created) within the scope of public employment, if a record is owned by an agency, if a record was used by an agency, or if the record is simply retained by the agency, it is public.

With the proliferation of new technology, this can extend to cell phones, social media accounts, GPS data, browsing history, etc. The possibilities are endless.

Additionally, the courts have ruled that public records are public regardless of where they reside.

Records that an agency employee prepares, owns, uses, or retains on a private cell phone can be ‘public records’ of the agency under RCW 42.56.010(3)

See Nissen v Pierce County (2015) and West v Vermillion (2016)

But what about privacy? The courts recognize that just because a record may mention work, doesn't mean it is a public record. 

For instance, employees do not generally act within the scope of employment when they text their spouse about working late or discuss their job on social media.

WA Supreme Court, Nissen v Pierce County (2016)

So where does that leave us? In this modern age, where our mobile devices and social media accounts are an extension of ourselves, the Public Records Act cannot not be circumvented by using a private device. Public employees, agencies, and elected officials must be aware that if they are acting within the scope of their employment, the PRA applies. 

- Whitney

JLARC Reporting Requirements

The 2017 Legislative updates to the PRA are officially live. So what does that mean? Lots. But for today I'm focusing on the JLARC reporting requirements.

The JLARC reporting requirements pose a potentially large burden on agencies, while having a TON of ambiguity around them. JLARC issued the following statement: 

Clear as mud right? At the end of the day what is clear is:

  • If your agency will exceed $100,000 in non-litigation PRA costs you need to report,
  • Some of these items will require clarification from JLARC,
  • Some of these items can be tracked immediately.

I recommend agencies that know they will qualify begin tracking what they can immediately. Below, I've listed the tracking requirements in ESHB 1594 and added commentary. As always, Ascender Consulting is not your attorney and this is not legal advice. Please consult your own legal counsel before making agency decisions.

(a) An identification of leading practices and processes for records management and retention, including technological upgrades, and what percentage of those leading practices and processes were implemented by the agency;  I would not worry about this one for now, JLARC will need to issue guidance on what they are looking for.

(b) The average length of time taken to acknowledge receipt of a public records request;  This can be tracked immediately.

(c) The proportion of requests where the agency provided the requested records within five days of receipt of the request compared to the proportion of requests where the agency provided an estimate of an anticipated response time beyond five days of receipt of the request;  This can be tracked immediately.

(d) A comparison of the agency's average initial estimate provided for full disclosure of responsive records with the actual time when all responsive records were fully disclosed, including whether the agency sent subsequent estimates of an anticipated response time; This will probably generate some clarification, but you can track how often or which requests you miss your promised deadline on.

(e) The number of requests where the agency formally sought additional clarification from the requestor;  This can be tracked immediately. (Note: review other legislative changes and recent case law as clarification has changed.)

(f) The number of requests denied and the most common reasons for denying requests;  This will probably get formal clarification, however the legislative intent of this item was for when a record is wholly withheld, not for exemptions. This can be tracked immediately.

(g) The number of requests abandoned by requestors;   The question of when a request is abandoned (first installment? fifth installment?) has come up. I would expect clarification. However, tracking all abandoned requests can occur immediately.

(h) To the extent the information is known by the agency, requests by type of requestor, including individuals, law firms, organizations, insurers, governments, incarcerated persons, the media, anonymous requestors, current or former employees, and others;  This can be tracked immediately. (Tip: if you can, add this to your request form)

(i) Which portion of requests were fulfilled electronically compared to requests fulfilled by physical records; This can be tracked immediately.

(j) The number of requests where the agency was required to scan physical records electronically to fulfill disclosure; This can be tracked immediately.

(k) The estimated agency staff time spent on each individual request; This can be tracked immediately. (Tip: all agencies should be doing this!)

(l) The estimated costs incurred by the agency in fulfilling records requests, including costs for staff compensation and legal review, and a measure of the average cost per request;  If you track time, you can do the math at the end of the year. 

(m) The number of claims filed alleging a violation of chapter 42.56 RCW or other public records statutes in the past year involving the agency, categorized by type and exemption at issue, if applicable; This will require clarification from JLARC on what a claim is. However, if your agency is sued, chances are you are tracking it.

(n) The costs incurred by the agency litigating claims alleging a violation of chapter 42.56 RCW or other public records statutes in the past year, including any penalties imposed on the agency; Risk and/or legal should be tracking this.

(o) The costs incurred by the agency with managing and retaining records, including staff compensation and purchases of equipment, hardware, software, and services to manage and retain public records or otherwise assist in the fulfillment of public records requests;  This will require clarification from JLARC to understand what their intent is on these expenses.

(p) Expenses recovered by the agency from requestors for fulfilling public records requests, including any customized service charges; and  If you are collecting fees you need to be tracking them. 

(q) Measures of requestor satisfaction with agency responses, communication, and processes relating to the fulfillment of public records requests.   This will require JLARC clarification.

Whew. Anybody else tired after reading that list?

So the next question is how to track these things. If you are using a tracking software, see if you can adapt some of the fields to track some of these items. Otherwise, good old Excel works. As JLARC said, there will need to be some adjustments made after they issue guidance. However, tracking what you can now, will save you a lot of time and headaches down the road. 

Good luck!

- Whitney

We are offering the 2017 Legislative Update class for just $15. Sessions are currently scheduled in Ellensburg, Port Townsend, and Spokane Valley. Click Register to view.

Additional Resources:

MRSC has also written guidance. And AWC has a Q and A from their webinar

2017 Legislative Updates

The 2017 legislative session brought some big changes to the Public Records Act.

Two weeks ago, we were thrilled to participate in a webinar with AWC, MRSC, and WSAC. We had a great session, which you can view on AWC's website. 

Due to multiple requests, Ascender Consulting will be taking this training on the road.

This one hour presentation will cover all of the basics you need to know in order to comply with the new public records laws going into effect on July 23, 2017. The presentation will feature information on legislative intent, ongoing work to implement the law, data tracking requirements, the process for clarifying requests, bot requests, training requirements, and more.

In order to make it accessible to as many agencies as possible we are offering this session for only $15/seat. Currently we have sessions scheduled in Port Townsend, Spokane Valley, and Ellensburg. 

If you would like to see these trainings come to your area, contact us! We are also available to come onsite to any agency and do this training. Contact us for pricing and details. 

Coming Soon! A New Public Records Management Option

Public Records tracking software is tricky. Most PROs are familiar with the two main products on the market - NextRequest and GovQA. These products do a great job, but, as with all things, they have their drawbacks. 

A local company is launching a third option. AIRLIFT has previously worked with the State Liquor and Cannabis Board, and now they are launching a public records platform. 

AIRLIFT Respond integrates the secure file sharing power of Box with a pretty design and powerful reporting. 

Every agency should evaluate what tool fits their needs best. I'm excited for us to have one more option. 

Ascender Consulting is not your attorney. Nothing we say is legal advice. Just our wisdom.

Hear Our Founder on Webinar

Ascender Consulting founder Whitney Stevens is thrilled to be joining a panel of PRA experts for the upcoming webinar New public records laws and what you need to know.

This webinar will cover what city staff need to know in order to comply with the new public records laws going into effect on July 23, and is co-sponsored by Municipal Research and Services Center (MRSC), and Washington State Association of Counties (WSAC).

For complete details visit AWC's website.