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Friday, February 2, 2007 - Page updated at 03:48 PM

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A. Introduction

The policy of the State of Washington encourages openness of records. The Open Public Records Act declares, "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. The public records subdivision of this chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy."

B. Records of Administrative Agencies-Summary

1. The State Public Disclosure is the cornerstone Act, Revised Code of Washington (RCW) Chapter 42.17.250 -.341, for rules governing inspection and copying of state and local government records.

2. General rule: Agencies are required to make available for public inspection and copying all public records that are not exempted from disclosure.

3. "Agency" includes all state and local agencies. Although the statute deals explicitly with records held by "agencies," it is not limited by its terms to administrative agency records. The Washington Supreme Court has yet to decide squarely whether the act applies to the judiciary or the Legislature.

4. A "public record" is any writing containing information relating to conduct of government or performance of any government function that is prepared, owned, used or retained by the agency, regardless of the physical form or characteristic. "Writing" is broadly defined to include documents as well as photographic film, sound recordings, film and video recordings, magnetic or paper tape, punched cards, diskettes, and existing data compilations from which information may be obtained or translated.

C. Obtaining Agency Records

1. Every agency is required to publish rules regarding the procedures to be followed by the public in obtaining records. Call the agency first and ask about their procedure.

(a) On routine matters, many agencies will release records without a written request.
(b) Unless you are reasonably sure that the agency will release the records, you should submit a written request. A written request starts the clock on the agency's time to respond and will establish a paper trail if you have to go to court. A sample written request is shown in Appendix l. Realize that the agency may have its own form that it may want filled out as part of your request. Forms are not required by the Act; in most cases, you may question (and refuse to provide) information or representations that pertian to liability for or use of public records.
(c) Assume all records are public. The agency - not the reuqestor - bears the burden of determining whether a record is exempt. For planning purposes, however, review the "exemptions" listed below to be sure your request is worded in such a way that none of the listed exemptions could reasonably be said to apply. You can also ask an agency for a list of exemptions that it believes apply to its records. Agencies are supposed to publish a list of such exemptions. Discuss the request with your editor and lawyer if you anticipate that the agency will claim that some exemption applies.
(d) Make your request as specific as possible.
(e) You may, but are not required to, give an explanation as to how you intend to use the information or why you want it.
(f) Unless it is inconvenient or expensive for you to review the documents in person, it can be cost-effective to ask simply to "inspect" the records, rather than copy them. Once you have reviewed the documents, you can request that the agency copy whatever documents you need.

2. The agency is required by law to make a prompt response to your request. "Promptness" is not defined in the statute; as a practical matter, most requests can be handled within 24 to 48 hours. The Attorney General has said that agencies must respond "reasonably expeditiously." Therefore, you should follow up on your request with a phone call if you have no response after two working days. If an agency is unable to respond to your request within five business days, it must provide you with a written estimate of the time it will need to respond. Agencies can extend their time to respond beyond five business days only in certain circumstances, such as when the records are widely dispersed.

3. If your request for inspection is granted, the records must be made available to you during customary office hours of the agency. The agency is also required to make available facilities for copying the records, although they may limit your access in such a way as to avoid disrupting the operations of the agency.

4. The agency may not charge you for locating the records and making them available for you to inspect or copy. Agencies may charge the actual cost of providing photocopies of the documents, including the cost of paper, the use of agency copying equipment, and the staff time needed to copy and mail the requested records. If an agency has not calculated the actual cost of providing public records, it may not charge in excess of fifteen cents per page. Each agency is supposed to maintian a statement of the costs it charges for providing public records. The actual cost of "copying" electronic records is sometimes difficult to know and agenices tend to overstate such costs. In requesting data base searches discuss the cost issue at the time you make your request.

5. If the agency denies your request, even if only in part, the agency is required to make a written statement of the specific exemptions authorizing the withholding of the record and a brief explanation of how the exemption applies to the record withheld.

6. The agency must conduct an internal review of any decision denying a request for inspection and must complete the review by the end of the second business day after the denial of inspection. An informal call to ascertain progress on your request may be useful.

D. Exemptions Set Forth in Act

1. Right to Privacy: The Public Records Act lists more than 41 types of information that agencies are not required to provide you. In addition the Act incorporates "other statutes" (state and federal) that pertian to confidentiality or accessibility of public records. Some involve "privacy" or the "right to privacy"; however, this concept is limited to these specific situations, and there is no general right to privacy. Moreover, where the term "privacy" is used, it is narrowly defined as disclosure of information that is both highly offensive and of no legitimate public concern.

2. Specific Discretionary Exemptions: An agency is not forbidden to disclose exempted information, and may release materials even if an exemption clearly applies. However, the Public Records Act lists certain types of information that the agency may refuse to give you, including the following:

(a) Personal information in files maintained for public school students, patients or clients of public institutions or public health agencies, or welfare recipients.

(i) A Washington superior court has ruled that names and addresses of property owners who contract with a city for home improvement loans provided under federal Housing and Urban Development rehabilitation program are not exempt under this section. This court found that such people are not "clients" of a city and that names and addresses are not "personal information."

(b) Personal information in files maintained for employees, appointees or elected officials of any public agency to the extent that disclosure would violate their right of privacy.

(i) A Washington Court of Appeals decision suggests that "personal information" is that which "normally would not be shared with strangers" and relates to a person's family life.
(ii) According to a 1973 state attorney general opinion, salary information should generally be available, although individual deductions taken by an employee may fall within the right of privacy.
(iii) Complaints by employees regarding their supervisor's job performance have been held not exempt.
(iv) Retirement disability records of firefighters and police officers are generally not exempt.
(v) Off-duty misconduct by police officers is not private information.
(vi) Teacher certification revocations, particularly as they pertain to sexual misconduct with students, are not private.
(vii) Performance evaluations of public employees have been held not to be exempt where redacted so that the employees were not identified. Such evaluations were withheld, however, where the employees were identifiable and where the evaluations did not discuss specific instances of misconduct.

(c) Tax assessment or collection information required of a taxpayer, the release of which would violate the taxpayer's right of privacy or would result in an unfair competitive disadvantage.

(i) The Washington Supreme Court has held that disclosure of data collected by the King County assessor for the purpose of assessing ad valorem taxes was not exempt information. The court said the right of privacy does not prevent disclosure of information about a taxpayer even though disclosure causes some inconvenience or embarrassment to the taxpayer.
(ii) The Court of Appeals has ruled that the right of privacy does not prevent the release by a county assessor of names of lessors and lessees of certain farmlands.

(d) Intelligence or investigative information possessed by investigative, law enforcement or professional disciplinary agencies, to the extent necessary for effective law enforcement or for protection of any person's right to privacy.

(i) Records of Public Disclosure Commission's investigation involving specific charges of campaign disclosure law violations have been held exempt because the records could lead to criminal prosecution and release of the records might destroy the ongoing investigation.
(ii) Police officers' complaints to a city manager about the police chief are public records, not exempt from disclosure. Inquiry into personnel matters or complaints is not "investigation" under the statute.
(iii) To qualify for exemption, records must be related to a criminal or quasi-criminal investigation focusing on a particular party, or related to a police internal affairs investigation. Records of police internal affairs investigations may be exempt, however, if their non-disclosure is held to be essential to effective law enforcement.
(iv) The name of the victim of an illegal strip search who is suing the city for damages relating to the incident has been held not exempt from disclosure.
(v) Agency investigations related to public employee misconduct, including off-duty misconduct, have been held not exempt from disclosure on privacy grounds.
(vi) Disclosure of unsubstantiated allegations involving a heinous crime, e.g., alleged child abuse by Tacoma mayoral candidate, may be invasion of privacy. Courts must find that the allegations have been adequately investigated and that there is no legitimate public concern as to the allegations themselves.

(e) Identities of victims, witnesses, and people who make complaints to law enforcement authorities if disclosure would place them or their property in danger. Such persons may even be entitled to elect anonymity.
(f) Test data for administration of a license, employment or academic examination.
(g) Contents of real estate appraisals, until final sale is completed or abandoned.
(h) Valuable formulae, designs, drawings and research data, if obtained by the agency in the past five years and if disclosure will result in a private gain and public loss.
(i) Information need not have a scientific or technical character to fall within this exemption. The Court of Appeals has withheld a cash-flow analysis commissioned by an agency on a showing that the information was organized, derived from a diligent search, and the basis for discussion or decision.

(ii) This exemption covers raw data as well as the over arching or guiding hypothesis.
(i) Preliminary drafts, notes, intra-agency memoranda and the like, in which opinions are expressed or policies are formulated or recommended.
(i) This exemption is limited to the deliberative or policy making process, not to factual matter used in the deliberations. There must be a showing that disclosure of the specific opinions would harm the agency's deliberative or consultative function. Once the opinions or recommendations covered by the exemption are implemented as policy, they lose their protection.
(ii) Peer review documentation concerning tenure decisions may be excepted from the above rule if the evaluators participate in making the tenure decision.
(iii) Raw material compiled by a sheriff, including interview summaries containing opinions of those interviewed for purposes of preparing a report on improvement of jail management is not exempt because such material is "evidence" on which the agency deliberates.
(iv) Complaints by police officers concerning their chief have been held not to be opinions, but fact. Also, it can be argued that only pre-decisional exchanges within an agency are exempt; discussion between agencies is not covered.
(v) Responses received by city in response to municipal golf manager survey are not exempt.
(vi) A study of real property was not deliberative process material where it was cited as the basis for a final action.
(vii) Matters that are factual, or that are assumed for the purposes of agency discussion to be factual, must be disclosed.

(j) Records previleged from the discovery process in litigation. These are records that are relevant to a controvery to which the agency is a party and that would not be discoverable by the other party to the controversy.
(k) Information identifying locations of archaeological sites.
(l) Library records that would disclose the identity of a library user.
(m) Financial information for bidder qualification submitted in conjunction with a bid for a ferry system construction or repair contract, or for a highway construction or improvement contract.
(n) Railroad company contracts filed prior to July 28, 1991 with the Washington Utilities and Transportation Commission (WUTC), except for summaries thereof.
(o) Financial and commercial information supplied by private persons pertaining to export services.
(p) Financial disclosures filed by private vocational schools.
(q) Records containing "valuable commercial information" filed with the WUTC (or attorney general) that have been classified by a court as confidential.
(r) Financial and commercial information supplied by businesses applying for loans or services from the Department of Trade and Economic Development, the Department of Community Development, the Development Loan Fund Committee and the Washington Economic Development Finance Authority.
(s) Membership lists in time-share projects, condominiums and the like, if regulated by the Department of Licensing (but only as to records possessed by or on file with the Department).
(t) All applications for public employment, including names of applicants, resumes and other related materials submitted with respect to an applicant.
(u) The residential addresses and residential telephone numbers of employees or volunteers of a public agency.
(v) The residential addresses and residential telephone numbers of customers of a public utility.
(w) Health care providers' Social Security numbers and residential addresses and phone numbers.
(x) Information obtained by the Board of Pharmacy in connection with the loss, theft, distribition, of disposed of drug samples.
(y) Information obtained by the Board of Pharmacy or Department of Health in connection with sale, delivery, identification, or distribution of prescription or controlled drugs.
(z) Financial information, business plans, examination reports and information submitted a business seeking certification as an industrial development corporation.
(aa) Financial and commercial information supplied to the State Investment Board relating to the investment of public trust or retirement funds if disclosure would result in loss.
(bb) Financial and valuable trade information provided to the Department of Labor & Industries by health care providers who have contracts in relations to the workers compensation program.
(cc) Client records maintained by a domestic violence shelter or rape crisis center.
(dd) Identifying information with respect to agency employees who make informal complaints regarding possible employment discrimination (usually sexual harassment), where the employee requests anonymity.
(ee) Investigative records compiled by an employing agency conducting a current investigatiion of an unfair labor practice or allegation of employment discrimination.
(ff) Business-related information submitted regarding certification of producers or organic food products.
(gg) Financial, commercial, operations, and technical and research information and data submitted to or obtained by the Clean Washington Center in applications for or delivery of program services.
(hh) Information and documents created specifically for a health care provider's agency-approved quality improvement program.

E. Miscellaneous Exemptions

In addition to the Public Records Act, a Seattle Times study for the 1992 Legislature revealed that there are over 150 isolated statutes that declare specific records confidential, secret or exempt from disclosure. These laws are generally valid. Some fall within one of the general exemptions set forth above, although some are difficult to categorize, such as:

1. Bank examination reports.
2. Auto accident reports.
3. Driving records.
4. Information relating to the administration of industrial insurance and employment security programs.
5. Voter registration cards.
6. Records or documents which have been given to a college, university, library or archive as a gift.
7. Certain records of the impaired physician program.
8. Information on commercial fertilizer distribution.
9. License applications for a concealed weapons permit.
10. Adoption and parentage records.
11. Welfare records.
12. Fireworks information.
13. Health care information in the files of health care providers.
14. License applications for check cashers.
15. Names and individual identification data of viators regulated by the Insurance Commissioner.
16. Insurance antifraud plans provided to the Insurance Commissioner.
17. Certain information concerning material transactions in the health care industry.

F. Effect of Confidentiality Agreements

An agency promise that information will not be divulged is of no effect when the information is subject to the Public Disclosure Act and is not otherwise exempted from disclosure.

1. The Washington Court of Appeals has ruled that a settlement agreement between a city and a former city fire chief is a public record and must be disclosed, even though the agreement specified that it was to remain confidential.

2. A Washington superior court has ruled that a confidentiality clause in a conciliation agreement settling a sex discrimination claim cannot be invoked to block disclosure required by the Public Records Act.

3. A confidentiality clause in an agreement settling a wrongful discharge dispute between a former employee and a public transit board has been held void as contrary to public policy and the Public Records Act.

G. Claim of Exemption by Agency

1. If you are denied access to records, the denial must set forth the specific reasons in writing.

2. If the agency sets forth any reasons other than the exemptions listed in the Public Records Act (or uses language which makes it unclear as to whether it is relying on the Public Records Act), request that the agency state whether it is relying on a specific exemption in the act.

3. Even if the agency claims one of the exemptions in the act, the agency is not entitled to withhold the entire record and must make public those portions of the record which are not exempt. Where possible, the agency must segregate exempt materials, or delete details that bring about exemption, and provide you with the remainder.

H. Obtaining Attorney General's Opinion

When a state agency concludes that a public record is exempt, a person may request the attorney general's office to review the matter. The attorney general must issue a written opinion as to whether the record is exempt.

I. Appeal of Agency Refusal

1. If the agency does not rescind its denial within two business days after the denial, you are entitled to petition the Superior Court for an order demanding that the agency "show cause" why it has refused to allow inspection or copying of the requested records. You should have consulted with your editor and lawyer by this time.

2. Before petitioning the court, be sure to assemble your written request and the agency's written denial, and know the location of the record you are seeking and the person who has custody of it.

3. Have your lawyer try to convince the agency of the validity of your request before going to court. Make the agency aware that you know your appeal rights, and remind it about the potential for award of attorneys' fees and civil penalties if you are the prevailing party.

4. In court proceedings, the burden of proof is on the agency to establish that refusal to permit public inspection or copying is lawful.

5. The court may conduct a hearing based solely on affidavits.

6. If you prevail in your court action against the agency and establish your right to inspect or copy the public records, the agency is required to pay your court costs, including reasonable attorneys' fees. In addition, you should receive a penalty award of not less than $5 per day and no more than $100 per day for each day you were denied the right to inspect or copy the records. Do not assume you will receive these payments; the record of reasonableness you establish will help, however.

J. Protective Orders

The Public Disclosure Act provides that a superior court may enjoin examination of a specific public record upon a showing that examination would clearly not be in the public interest and would (not may) irreparably damage a person or a vital government function. The Supreme Court of Washington has repudiated an earlier cse that appeared to interprete this langauge as allowing courts to withhold documents on the grounds of protecting the public interest and vital goernment functions, even if no specific exemption applied. This provision does not crate an independent basis for withholding documents.

K. Vital Statistics

The state registrar "may" furnish certified copies of vital statistics. The department of health is required to charge a fee of $11 for certified copies of records for research, statistical, or administrative purposes, and $8 for a search of the files or records when no copy is made.

L. Records of State Legislature

1. The law regarding maintenance, management and dissemination of legislative records is set forth in Title 40 of the Revised Code of Washington.

2. Reports of newly enacted legislation and its legislative history are available at the local county law library. However, thee materials are often unsatisfactory for your purposes because they lack depth.

3. Detailed information, such as floor votes, committee reports and statements of legislators, generally can be obtained by contacting the Clerk of the House of Representatives (753-7750), the Secretary of the Senate (786-7550) or the committee that has dealt with or is dealing with the matter in which you are interested (1-800-321-2808, general information).

4. Legislators are entitled to keep personal correspondence confidential.

5. The Code Reviser's Office is also permitted to keep bill-drafting records confidential.

6. The Secretary of the Senate and the Chief Clerk of the House are considered administrative agencies subject to the Public Disclosure Act.

M. Records of State Courts

1. The Washington Supreme Court has never expressly determined whether the judicial branch is an "agency" for purposes of the Public Records Act; nevertheless, the court has determined that there is a common law right of access to judicial records.

2. Court records, including such items as pleadings, briefs and exhibits, are usually available from the clerk of the court where the case is filed. If the case is on appeal, the records may be with the clerk of the Court of Appeals or the clerk of the Supreme Court.

3. In populous counties, such as King, Pierce, Snohomish and Spokane, you probably will have to visit the clerk's office in person in order to quickly obtain copies of records. In smaller counties, the clerk may act promptly on a request by letter.

4. Before a case goes to trial, a judge may order that certain materials "in the file" be kept confidential. Because of the public's constitutional right to open justice, the sealing of records must comply with requirements discussed in detail in
PART II: SECTION A (Legal background)
PART II: SECTION B (Practical suggestions if closure or sealing is proposed in Federal Court)
PART II: SECTION C (Practical suggestions if closure or sealing is proposed in State Court).

5. Courts may vary in their willingness to provide press access to pre-sentence reports.

6. As an administrative matter, deposition transcripts are usually not available until the court orders them "published." This usually occurs when a party to a lawsuit wants to use them in an argument or motion. Reporters or other non-parties ordinarily cannot move for publication under existing procedures, although courts in other jurisdictions have held that the press and public may have a right of access to such transcripts. Frequently, the parties will make deposition transcripts available.

7. The Ninth Circuit Court of Appeals has held that a First Amendment right of access attaches to pretrial documents filed in criminal cases.

(a) This access guarantee has been extended by the Ninth Circuit to cover documents filed in civil pretrial proceedings.
(b) The Ninth Circuit has also opened sealed documents filed in support of a post-sentencing motion for reduced sentence. The court applied courtroom closure rules and found no compelling interest in non-disclosure.
(c) The U.S. Supreme Court has held that a newspaper litigant has no First Amendment right to disseminate information gained through civil pretrial discovery and covered by a court protective order, unless the information is obtained outside the discovery process.

8. The Washington Supreme Court has ruled that, once introduced at trial, materials are available to the public and the press even if they previously enjoyed a privilege of confidentiality.

9. In most cases search warrants and related records are accessible to the public after the warrant has been "executed" (search carried out or canceled). A Washington Supreme Court decision, however, states that access to an affidavit showing probable cause for issuance of a search warrant is not governed by a constitutional right until the investigation results in the filing of criminal charges.

But the court broadened the public's right to know the reasons for which certain search warrant records are permanently sealed. A judge issuing a sealing order must file a transcript of the in camera proceeding on which the order is based, a written sealing order, and written findings of fact and conclusions of law, all immediately after the decision to seal is made. In determining whether to seal search warrant records, courts must follow those guidelines:

(a) Unless there is an objection, an executed search warrant and associated records are to be made part of the court file.
(b) Interested parties may request that a search warrant not be included in the court file. Those entitled to make such a request include:

(i) the subject of the search,
(ii) law enforcement officials and
(iii) informants upon whose information the affidavit of probable cause was issued.

(c) The objector to the filing must demonstrate that filing of the documents represents a substantial threat that indiscriminate disclosure of the records may unnecessarily embarrass the subject of an unfruitful search, may allow a suspect to escape arrest or destroy evidence, may discourage informants from providing information out of fear for their safety and well-being, or may abridge another significant interest.
(d) The person objecting to the filing of a search warrant must state specific reasons supporting the need for confidentiality. (These reasons should appear in the public file.)

10. If you are denied access to records by the clerk's office, ask the clerk to give you a written explanation for the denial.

11. Traditionally, records of the juvenile court are kept confidential and are released only in rare circumstances. However, all official juvenile court files on delinquents are now open to the public unless there is a specific order (issued in very limited circumstances) to "seal"the file.

12. Sealed juvenile court files and related files maintained by juvenile-care agencies, such as the Department of Social and Health Services, remain confidential and can be obtained only with the court's permission upon a showing that the person seeking the records is engaged "in legitimate research for ... public purposes."

(a) The Washington Supreme Court has held that a newspaper reporter may qualify as a legitimate researcher for purposes of access to juvenile court records.
(b) The King County Superior Court, Juvenile Department, has found that reporters are legitimate researchers and that they need pledge to keep confidential only the names of juveniles and parents - not of public officials.

13. Following is a list of court-related records which may be kept confidential:

(a) Criminal-history record information involving "nonconviction data", i.e., information collected by agencies other than the court during the investigation of a criminal matter, unless the defendant "is currently being processed by the criminal justice system," which includes jail and parole.
(b) Proceedings of special inquiry judges. However, the Ninth Circuit Court of Appeals has held that the public has a limited right of access to procedural records concerning grand jury empaneling and operation.
(c) Records of adoption or foster care.
(d) Records of people receiving voluntary or involuntary treatment for mental illness.
(e) Records of paternity hearings, except for final judgment.

14. You may always request that sealed files be opened if you can give a good reason. You may publish such records if you obtained them elsewhere, even if you could not obtain them directly from the courts.

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