Washington Administrative Code › Title 44 - Attorney General's Office › Chapter 44-14 - Public Records Act-Model rules › Comments to WAC 44-14-050 › Section 44-14-05001 - Access to electronic records

Current through Register Vol. 24-14, July 15, 2024
The Public Records Act does not distinguish between access to
				  paper and electronic records. Instead, the act explicitly includes electronic
				  records within its coverage. The definition of "public record" includes a
				  "writing," which in turn includes "existing data compilations from which
				  information may be obtained or translated."RCW
				    42.56.010(4)
									1. Many agency records are now in an
				  electronic format. Many of these electronic formats such as Windows products are
				  generally available and are designed to operate with other computers to quickly
				  and efficiently locate and transfer information. Providing electronic records can
				  be cheaper and easier for an agency than paper records. Furthermore,
				  RCW
				    43.105.351 provides: "It is the intent of the
				  legislature to encourage state and local governments to develop, store, and
				  manage their public records and information in electronic formats to meet their
				  missions and objectives. Further, it is the intent of the legislature for state
				  and local governments to set priorities for making public records widely
				  available electronically to the public."
In general, an agency should provide electronic records in an
				  electronic format if requested in that format, if it is reasonable and feasible
				  to do so.2 While not required, an agency may translate
				  a record into an alternative electronic format at the request of the requestor if
				  it is reasonable and feasible to do so, and that action does not create a new
				  public record for the purposes of the act.
				  RCW
				    42.56.120(1). For example, an
				  agency may scan a paper record to make an electronic copy, and that action does
				  not create a new public record.
Id
. An agency can provide links
				  to specific records on the agency's public internet web site.
				  RCW
				    42.56.520. An agency shall not impose copy
				  charges for access to or downloading records that the agency routinely posts on
				  its internet web site prior to the receipt of a request unless the requestor has
				  specifically requested that the agency provide copies of such records by other
				  means.
				  RCW
				    42.56.120(2)(e).
Reasonableness and technical feasibility are the touchstones
				  for providing electronic records. An agency should provide reasonably locatable
				  electronic public records in either their original generally commercially
				  available format (such as an Acrobat PDF file) or, if the records are not in a
				  generally commercially available format, the agency should provide them in a
				  reasonably translatable electronic format if possible. In the rare cases when the
				  requested electronic records are not reasonably locatable, or are not in a
				  generally commercially available format or are not reasonably translatable into
				  one, the agency might consider customized access.
Delivering electronic records can be accomplished in several
				  ways or a combination of ways. For example, an agency may post records on the
				  agency's internet web site and provide the requestor links to specific documents;
				  make a computer terminal available at the agency so a requestor can inspect
				  electronic records and designate specific ones for copying; send records by
				  email; copy records onto a CD, DVD or thumb drive and mail it to the requestor or
				  make it available for pickup; upload records to a cloud-based server, including
				  to a file transfer protocol (FTP) site and send the requestor a link to the site;
				  provide records through an agency portal; or, through other means. Practices may
				  vary among agencies in how they deliver records in an electronic format; the act
				  does not mandate only one method and the courts have said agencies have some
				  discretion in establishing their reasonable procedures under the
				  act.3 Finally, other delivery issues may be relevant
				  to a particular agency or request. For example, there may be limits with the
				  agency's email system or the requestor's email account with respect to the
				  volume, size or types of emails and attachments that can be sent or
				  received.
What is reasonable and technically feasible for copying and
				  delivery of electronic records in one situation or for one agency may not be in
				  another. Not all agencies, especially smaller units of local government, have the
				  electronic resources of larger agencies and some of the generalizations in these
				  model rules may not apply every time. If an agency initially believes it cannot
				  provide electronic records in an electronic format, it should confer with the
				  requestor and the two parties should attempt to cooperatively resolve any
				  technical difficulties. See WAC
				  44-14-05003.
				  It is usually a purely technical question whether an agency can provide
				  electronic records in a particular format in a specific case.
An agency is not required to buy new software, hardware or
				  licenses to process a request for production or delivery of public records.
				  However, an agency lacking resources to provide, redact or deliver more records
				  electronically may want to consider seeking funding or other arrangements in an
				  effort to obtain such technologies. See
				  RCW
				    43.105.355 (state and local agencies);
				  RCW
				    40.14.026 (local agencies -competitive grant
				  program).
Notes:
1See also
Fisher
						  Broadcasting v. City of Seattle
, 180 Wn.2d 515, 326 P.3d 688 (2014)
						  (database discussion).
2
Mechling v. City of
						  Monroe
, 152 Wn. App. 830, 222 P.3d 808 (2009) ("[T]here is no provision
						  in the PDA [PRA] that expressly requires a governmental agency to provide records
						  in electronic form. ... [a]lthough the City has no express obligation to provide
						  the requested email records in an electronic format, consistent with the
						  statutory duty to provide the fullest assistance and the model rules, on remand
						  the trial court shall determine whether it is reasonable and feasible for the
						  City to do so.");
Mitchell v. Dep't of Corr.
, 164 Wn. App. 597
						  (2011) ("Nothing in the PRA obligates an agency to disclose records
						  electronically.")
3
Hearst Corp. v.
						  Hoppe
, 90 Wn.2d 123, 580 P.2d 246 (1978).
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, amending
					 RCW   42.56.570. 07-13-058, §
											44-14-05001,
					 filed 6/15/07, effective 7/16/07.