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