Washington Administrative Code › Title 44 - Attorney General's Office › Chapter 44-14 - Public Records Act-Model rules › Comments to WAC 44-14-050 › Section 44-14-05002 - "Reasonably locatable" and "reasonably translatable" electronic records

Current through Register Vol. 24-14, July 15, 2024
(1)
"Reasonably locatable" electronic
				records.
The act obligates an agency to provide nonexempt "identifiable
				& records."RCW
				  42.56.080. An "identifiable record" is
				essentially one that agency staff can "reasonably locate." WAC
				44-14-04002(2).
				Therefore, a general summary of the "identifiable record" standard as it relates
				to electronically locating public records is that the act requires an agency to
				provide a nonexempt "reasonably locatable" record. This does not mean that an
				agency can decide if a request is "reasonable" and only fulfill those requests.
				Rather, "reasonably locatable" is a concept, grounded in the act, for analyzing
				electronic records issues.
In general, a "reasonably locatable" electronic record is one
				  which can be located with typical search features and organizing methods
				  contained in the agency's current software. For example, a retained email
				  containing the term "XYZ" is usually reasonably locatable by using the email
				  program search feature. However, some email search features have limitations,
				  such as not searching attachments, but are a good starting point for the search.
				  Information might be "reasonably locatable" by methods other than a search
				  feature. For example, a request for a copy of all retained emails sent by a
				  specific agency employee for a particular date is "reasonably locatable" because
				  it can be found utilizing a common organizing feature of the agency's email
				  program, such as a chronological "sent" folder. Another indicator of what is
				  "reasonably locatable" is whether the agency keeps the information in a
				  particular way for its business purposes. For example, an agency might keep a
				  database of permit holders including the name of the business. The agency does
				  not separate the businesses by whether they are publicly traded corporations or
				  not because it has no reason to do so. A request for the names of the businesses
				  which are publicly traded is not "reasonably locatable" because the agency has no
				  business purpose for keeping the information that way. In such a case, the agency
				  should provide the names of the businesses (assuming they are not exempt from
				  disclosure) and the requestor can analyze the database to determine which
				  businesses are publicly traded corporations.
(2)
"Reasonably translatable" electronic
				records.
The act requires an agency to provide a "copy" of nonexempt
				records (subject to certain copying charges).
				RCW
				  42.56.070(1) and
				42.56.080.
				To provide a photocopy of a paper record, an agency must take some reasonable
				steps to mechanically translate the agency's original document into a useable
				copy for the requestor such as copying it in a copying machine, or scanning it
				into Adobe Acrobat PDF®. Similarly, an agency must take some reasonable
				steps to prepare an electronic copy of an electronic record or a paper record.
				Providing an electronic copy is analogous to providing a paper record: An agency
				must take steps to translate the agency's original into a useable copy for the
				requestor, if it is reasonable and feasible for it to do so.
The "reasonably translatable" concept typically operates in
				  three kinds of situations:
(a) An agency
				has only a paper record;
(b) An
				agency has an electronic record in a generally commercially available format
				(such as a Windows® product); or
(c) An agency has an electronic record in an
				electronic format but the requestor seeks a copy in a different electronic
				format.
The following examples assume no redactions are
				  necessary.
(i)
Agency has
				paper-only records.
When an agency only has a paper copy of a record, an
				example of a "reasonably translatable" copy would be scanning the record into an
				Adobe Acrobat PDF® file and providing it to the requestor. The agency
				could recover its actual or statutory cost for scanning. See
				RCW   42.56.120.
				While not required, providing a PDF copy of the record is analogous to making a
				paper copy. However, if the agency lacked a scanner (such as a small unit of
				local government), the record would not be "reasonably translatable" with the
				agency's own resources. In such a case, the agency could provide a paper copy to
				the requestor.
(ii)
Agency has
				electronic records in a generally commercially available format.
When an
				agency has an electronic record in a generally commercially available format,
				such as an Excel® spreadsheet, and the requestor requests an electronic
				copy in that format, no translation into another format is necessary; the agency
				should provide the spreadsheet electronically. Another example is where an agency
				has an electronic record in a generally commercially available format (such as
				Word®) and the requestor requests an electronic copy in Word®. An
				agency cannot instead provide a WordPerfect® copy because there is no
				need to translate the electronic record into a different format. In the
				paper-record context, this would be analogous to the agency intentionally making
				an unreadable photocopy when it could make a legible one. Similarly, the
				WordPerfect® "translation" by the agency is an attempt to hinder access
				to the record. In this example, the agency should provide the document in
				Word® format. Electronic records in generally commercially available
				formats such as Word® could be easily altered by the requestor.
				Requestors should note that altering public records and then intentionally
				passing them off as exact copies of public records might violate various criminal
				and civil laws.
(iii)
Agency
				has electronic records in an electronic format other than the format
				requested.
When an agency has an electronic record in an electronic format
				(such as a Word® document) but the requestor seeks a copy in another
				format (such as WordPerfect®), the question is whether the agency's
				document is "reasonably translatable" into the requested format. If the format of
				the agency document allows it to "save as" another format without changing the
				substantive accuracy of the document, and the agency has a WordPerfect®
				license, this would be "reasonably translatable." The agency's record might not
				translate perfectly, but it was the requestor who requested the record in a
				format other than the one used by the agency. Another example is where an agency
				has a database in a unique format that is not generally commercially available. A
				requestor requests an electronic copy. The agency can convert the data in its
				unique system into a near-universal format such as a comma-delimited or
				tab-delimited format. The requestor can then convert the comma-delimited or
				tab-delimited data into a database program (such as Access®) and use it.
				The data in this example is "reasonably translatable" into a comma-delimited or
				tab-delimited format so the agency should do so. A final example is where an
				agency has an electronic record in a generally commercially available format
				(such as Word®) but the requestor requests a copy in an obscure word
				processing format. The agency offers to provide the record in Word®
				format but the requestor refuses. The agency can easily convert the Word document
				into a standard text file which, in turn, can be converted into most programs.
				The Word® document is "reasonably translatable" into a text file so the
				agency should do so. It is up to the requestor to convert the text file into his
				or her preferred format, but the agency has provided access to the electronic
				record in the most technically feasible way and not attempted to hinder the
				requestor's access to it.