PUBLIC RECRDS 101

Top Ten Things Every Employee Must Know About the Public Records Act

Presented by: Amanda Davis Simpfenderfer SCCD Public Records Officer

What is the Public Records Act Requires that most records maintained by state, county, city governments, and all special purpose districts be made available to members of the public.

Public records disclosure statutes apply equally to "every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency.

The definition of what is a "public record" is quite broad. The definition of "writing" is also broad. Papers, photos, maps, videos, and electronic records are all covered by the Public Records Act.

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Employees Are Ethically Required to Know

• • • Personal Legal Obligation: “No state officer or state

employee may intentionally conceal a record if the officer or employee knew the record was required to be

released under [the PRA.]” RCW 42.52.050.

Agency Liability: “An agency’s compliance with the

Public Records Act is only as reliable as the weakest

link.” P.A.W.S. v. UW, 125 Wn.2d 243, 269 (1994).

Legal Duty Under the PRA: All employees must help locate records and must be able to identify requests

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#1 Strong Public Mandate in Favor of Open Government

• Passed by Initiative in 1972 • All records subject to of an agency are presumed to be disclosure • Agencies must respond promptly and provide fullest assistance to requesters

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#2 You May Have to Help Process a PRA Request

• • • If a Records Request is made to you If you are named in the Records Request If the Records Requested are in your possession

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#3 Agencies Must Disclose at Almost No Cost

• No fee for inspection • No charge for search time • May charge for copying, scanning from hard copy to electronic copy, or sending large amounts of documents via CD

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#4 PRA Compliance Is a Team Effort

•Public Records Officer •Records Custodians •IT Staff •Agency Attorney •Executive Staff

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#5 Listen to Your PRO

Public Records Officer is following a game plan Fully trained in legal requirements Customer oriented

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#6 Pays to Embrace the Public Records Act

• Embracing your duties under the PRA leads to better compliance • A bad attitude can cost you • Disliking or complaining about the request doesn’t lessen the responsibility to comply

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• NEW $0 to $100 per day per request • No proof of damages required • Attorney fees and costs

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Significant Penalties

• • • • • • Mason County $175,000 & $135,000 DSHS $525,001 (3 x $175,000) City of Monroe $157,000 City of Prosser $175,000 Jefferson County $42,000 King County $360,000 in Yousoufian – Supreme Court held $124,000 was TOO low

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#7 PRA Requires “Prompt Response”

Three Tasks Your Public Records Officer Must Complete Immediately

1. Start tracking request 2. Notify record holders and IT (records preservation) 3. Start generating the 5-day response

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Generating the 5-day Response

You must take 1 of 4 actions in 5 days:

1. Deny request 2. Fulfill request by providing documents (may fulfill by providing a link to the document on the web) 3. Reasonable time estimate 4. Request clarification

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“Reasonable” Time Estimate Based on:

Size of request • Location of records/number of custodians • Likelihood of exemptions and redactions • Available staff, number of other requests • An agency can revise its estimate

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#8 All Records Presumed to Be Public Records A public record is:

1. Any writing 2. Relating to the conduct / performance of any governmental or proprietary function 3. Prepared, owned, used, or retained by a public agency “nearly any conceivable government record related to the conduct of government.” O’Neill v. City of Shoreline, 170 Wn.2d 138 (2010).

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Types of Records

• • • • • •

Traditional Records Letters Contracts Resolutions

•

Electronic Records Emails Word documents Spreadsheets PDFs

• • • • • • • •

Calendars Evaluations Public comment forms Photographs, videos and MP3s Databases Voicemails Text Messages Social Media

Personal Computers and Email Accounts

• •

Work-related records are public records wherever they are located, including: Records saved on home

computer

Emails sent to or from personal

email accounts

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#9 Agencies Must Conduct a Broad Search for Records

1. All locations and sources you would reasonably expect to find responsive records 2. Re-assess and update search criteria

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#9 Agencies Must Conduct a Broad Search for Records

Email Central File Server Calendars Where do you search?

• Emails Laptops and Desktops Thumb Drives • • • Central server Calendars Desktops & Laptops PDAs Cell Phones Drawers • • • • • PDAs Cell phones Thumb drives Drawers Off-site storage

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Retention and Creation Matter

• If you don’t create it, you don’t have to produce it • If you know where you put it, it’s a lot easier to find • • If you’ve properly deleted it, you won’t have any liability under the PRA … http://www.sos.wa.gov/_assets/archives/RecordsManagement/ SGGRRS5.1.pdf

… as long as there was no pending request!!

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Specific Exemption Required

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ONLY WITHHOLD A RECORD WHEN IT WILL SERVE THE PUBLIC INTEREST

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Personal Privacy Commercial Efficient Government Taxpayer Public Safety

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Agencies must allow records to be examined “even though such examination may cause inconvenience or embarrassment to public officials or others” RCW 42.56.550(3) PRA 101

Exemptions Allowed Under the Public Records Act

1) Student Records 2) Attorney Client Privilege 3) Attorney Client Work Product 4) Public Employees – Applications 5) Public Employees – Personal Information 6) Public Employees – Personnel Files 7) Personal Financial Information 8) Social Security Numbers 9) Systems Security

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When You Must Withhold You Still Must Disclose

Silent Withholding

Provide Basic Identifying Information

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