Washington Administrative Code › Title 44 - Attorney General's Office › Chapter 44-14 - Public Records Act-Model rules › Comments to WAC 44-14-030 › Section 44-14-03001 - "Public record" defined

Current through Register Vol. 24-14, July 15, 2024
For most public records, the act uses a three-part test to
				  determine if a record is a "public record." The document must be: A "writing,"
				  containing information "relating to the conduct of government" or the performance
				  of any governmental or proprietary function, "prepared, owned, used, or retained"
				  by an agency. Effective July 23, 2017, records of certain volunteers are excluded
				  from the definition.
				  RCW
				    42.56.010(3) (chapter 303,
				  Laws of 2017).
(1)
Writing.
A "public record" can be any writing "regardless of physical form or
				characteristics."RCW
				  42.56.010(3). "Writing" is
				defined very broadly as: "... handwriting, typewriting, printing, photostating,
				photographing, and every other means of recording any form of communication or
				representation including, but not limited to, letters, words, pictures, sounds,
				or symbols, or combination thereof, and all papers, maps, magnetic or paper
				tapes, photographic films and prints, motion picture, film and video recordings,
				magnetic or punched cards, discs, drums, diskettes, sound recordings, and other
				documents including existing data compilations from which information may be
				obtained or translated."RCW
				  42.56.010(4). An email, text,
				social media posting and database are therefore also "writings."
(2)
Relating to the conduct of
				government.
To be a "public record," a document must relate to the
				"conduct of government or the performance of any governmental or proprietary
				function."RCW
				  42.56.010(3).1
				Almost all records held by an agency relate to the conduct of government;
				however, some do not. A purely personal record having absolutely no relation to
				the conduct of government is not a "public record." Even though a purely personal
				record might not be a "public record," a record of its existence might be if its
				existence was used for a governmental purpose.2 For
				example, a record showing the existence of a purely personal email sent by an
				agency employee on an agency computer would probably be a "public record," even
				if the contents of the email itself were not. 
				3
(3)
"Prepared, owned, used, or
				retained."
A "public record" is a record "prepared, owned, used, or
				retained" by an agency.
				RCW
				  42.56.010(3).
A record can be "used" by an agency even if the agency does not
				  actually possess the record. If an agency uses a record in its decision-making
				  process it is a "public record." 
				  4 For example, if an agency considered
				  technical specifications of a public works project and returned the
				  specifications to the contractor in another state, the specifications would be a
				  "public record" because the agency "used" the document in its decision-making
				  process. 
				  5 The agency could be required to obtain
				  the public record, unless doing so would be impossible. An agency cannot send its
				  only copy of a public record to a third party for the sole purpose of avoiding
				  disclosure. 
				  6
Sometimes agency employees or officials may work on agency
				  business from home computers or on other personal devices, or from nonagency
				  accounts (such as a nonagency email account), creating and storing agency records
				  on those devices or in those accounts. When the records are prepared, owned, used
				  or retained within the scope of the employee's or official's employment, those
				  records (including emails, texts and other records) were "used" by the agency and
				  relate to the "conduct of government" so they are "public
				  records."7RCW
				    42.56.010(3). However, the act
				  does not authorize unbridled searches of agency property. 
				  8 If agency property is not subject to
				  unbridled searches, then neither is the home computer, or personal device or
				  personal account of an agency employee or official. Yet, because the records
				  relating to agency business are "public records," they are subject to disclosure
				  (unless exempt). Agencies should instruct employees and officials that all public
				  records, regardless of where they were created, should eventually be stored on
				  agency computers. Agencies should ask employees and officials to keep
				  agency-related documents with any retention requirements on home computers or
				  personal devices in separate folders temporarily, until they are provided to the
				  agency. An agency could also require an employee or official to routinely blind
				  carbon copy ("bcc") work emails in a personal account back to an agency email
				  account. If the agency receives a request for records that are located solely on
				  employees' or officials' home computers or personal devices, or in personal
				  accounts, the agency should direct the individual to search for and provide any
				  responsive documents to the agency, and the agency should process the request as
				  it would if the records were on the agency's computers or in agency-owned devices
				  or accounts. The agency employee or official may be required by the agency to
				  sign an affidavit describing the nature and extent of his or her search for and
				  production of responsive public records located on a home computer or personal
				  device, or in a nonagency account, and a description of personal records not
				  provided with sufficient facts to show the records are not public
				  records.9
Agencies could provide employees and officials with an
				  agency-issued device that the agency retains a right to access. Or an agency
				  could limit or prohibit employees' and officials' use of home computers, personal
				  devices or personal accounts for agency business. Agencies should have policies
				  describing permitted uses, if any, of home computers, personal devices or
				  personal accounts for agency business. The policies should also describe the
				  obligations of employees and officials for retaining, searching for and producing
				  the
agency's public records.10
Notes:
1
Confederated Tribes of
						  the Chehalis Reservation v. Johnson
, 135 Wn.2d 734, 748, 958 P.2d 260
						  (1998) (broadly interpreting the provision concerning governmental function).
2See
Mechling v.
						  Monroe
, 152 Wn. App. 830, 867, 222 P.3d 808 (2009) ("[P]urely personal
						  emails of those government officials are not public records.");
Nissen v.
						  Pierce County
, 183 Wn.2d 863, 357 P.3d 45 (2015) (describing that an
						  employee or official must provide the agency responsive "public records" but is
						  not required to provide "personal records").
3
Tiberino v. Spokane
						  County Prosecutor
, 103 Wn. App. 680, 691, 13 P.3d 1104 (2000) (record of
						  volume of personal emails used for governmental purpose).
4
Concerned Ratepayers v.
						  Public Utility Dist. No. 1
, 138 Wn.2d 950, 958-61, 983 P.2d 635 (1999);
Nissen
, 183 Wn.2d at 882. (For a record to be "used" it must
						  bear a nexus with the agency's decision-making process; a record held by a third
						  party, without more, is not a public record unless an agency "uses" it.)
5
Concerned
						  Ratepayers,
138 Wn.2d 950.
6See Op. Att'y Gen. 11 (1989), at
						  4, n.2 ("We do not wish to encourage agencies to avoid the provisions of the
						  public disclosure act by transferring public records to private parties. If a
						  record otherwise meeting the statutory definition were transferred into private
						  hands solely to prevent its public disclosure, we expect courts would take
						  appropriate steps to require the agency to make disclosure or to sanction the
						  responsible public officers.")
7
Nissen
, 183
						  Wn.2d at 882;
West v. Vermillion
, 196 Wn. App. 627, 384 P.3d 634
						  (2016). In
Nissen
the State Supreme Court held that a
						  communication is "within the scope of employment" when the job requires it, the
						  employer directs it, or it furthers the employer's interests. This inquiry is
						  always case- and record-specific.
8See
Hangartner v. City of
						  Seattle
, 151 Wn.2d 439, 448, 90 P.3d 26 (2004).
9
Nissen,
183
						  Wn.2d at 886-887.
10
Id
. at 877,
						  886-887.
Reviser's note:
The brackets and enclosed
					 material in the text of the above section occurred in the copy filed by the
					 agency and appear in the Register pursuant to the requirements of
					 RCW
					   34.08.040.
Statutory Authority: 2005 c 483 § 4, RCW   42.17.348.
					 06-04-079, §
											44-14-03001, filed 1/31/06, effective
					 3/3/06.