Washington Administrative Code › Title 44 - Attorney General's Office › Chapter 44-14 - Public Records Act-Model rules › Comments on WAC 44-14-040 › Section 44-14-04004 - Responsibilities of agency in providing records

Current through Register Vol. 24-14, July 15, 2024
(1)
General.
An agency may simply
				provide the records or make them available within the five-business day period of
				the initial response. When it does so, an agency should also provide the
				requestor a written cover letter or email briefly describing the records provided
				and informing the requestor that the request has been closed. This assists the
				agency in later proving that it provided the specified records on a certain date
				and told the requestor that the request had been closed. However, a cover letter
				or email might not be practical in some circumstances, such as when the agency
				provides a small number of records or fulfills routine requests.
An agency can, of course, provide the records sooner than five
				  business days. Providing the "fullest assistance" to a requestor would mean
				  providing a readily available record as soon as possible. For example, an agency
				  might routinely prepare a premeeting packet of documents three days in advance of
				  a city council meeting. The packet is readily available so the agency should
				  provide it to a requestor on the same day of the request so he or she can have it
				  for the council meeting.
(2)
Means of providing access.
An agency must make nonexempt public
				records "available" for inspection or provide a copy.
				RCW
				  42.56.080. An agency is only required to make
				records "available" and has no duty to explain the meaning of public
				records.1 Making records available is often called
				"access."
Access to a public record can be provided by allowing
				  inspection of the record, providing a copy, or posting the record on the agency's
				  web site and assisting the requestor in finding it (if necessary). An agency must
				  mail a copy of records if requested and if the requestor pays the actual cost of
				  postage and the mailing container.2 The requestor can
				  specify which method of access (or combination, such as inspection and then
				  copying) he or she prefers. Different processes apply to requests for inspection
				  versus copying (such as copy charges) so an agency should clarify with a
				  requestor whether he or she seeks to inspect or copy a public record.
An agency can provide access to a public record by posting it
				  on its public internet web site. Once an agency provides a requestor an internet
				  address and link on the agency's web site to the specific records requested, the
				  agency has provided the records, and at no cost to the requestor.
				  RCW
				    42.56.520. If requested, an agency should
				  provide reasonable assistance to a requestor in finding a public record posted on
				  its web site. If the requestor does not have internet access, the agency may
				  provide access to the record by allowing the requestor to view the record on a
				  specific computer terminal at the agency open to the public. An agency shall not
				  impose copying charges for access to or downloading records that the agency
				  routinely posts on its web site prior to receipt of a request unless the
				  requestor has specifically requested that the agency provide copies of such
				  records through other means.
				  RCW
				    42.56.120(2)(e).
(3)
Providing records in
				installments.
The act provides that an agency must provide records "if
				applicable, on a partial or installment basis as records that are part of a
				larger set of requested records are assembled or made ready for inspection or
				disclosure."RCW
				  42.56.080. An installment can include links to
				records on the agency's internet web site. The purpose of this installments
				provision is to allow requestors to obtain records in installments as they are
				assembled and to allow agencies to provide records in logical batches. The
				provision is also designed to allow an agency to only assemble the first
				installment and then see if the requestor claims or reviews it before assembling
				the next installments. An agency can assess charges per installment for copies
				made for the requestor, unless it is using the up to two-dollar flat fee charge.
				RCW
				  42.56.120(4).
Not all requests should be provided in installments. For
				  example, a request for a small number of documents which are located at nearly
				  the same time should be provided all at once. Installments are useful for large
				  requests when, for example, an agency can provide the first box of records as an
				  installment. An agency has wide discretion to determine when providing records in
				  installments is "applicable." However, an agency cannot use installments to delay
				  access by, for example, calling a small number of documents an "installment" and
				  sending out separate notifications for each one. The agency must provide the
				  "fullest assistance" and the "most timely possible action on requests" when
				  processing requests.
				  RCW
				    42.56.100.
(4)
Failure to provide records.
A
				"denial" of a request can occur when an agency:
Fails to respond to a request;
Claims an exemption of the entire record or a portion of it;
Without justification, fails to provide the record after the
				  reasonable estimate of time to respond expires; or
Determines the request is an improper "bot" request. An agency
				  is only required to provide access to public records it has or has
				  used.3 An agency is not required to create a public
				  record in response to a request.
An agency must only provide access to public records in
				  existence at the time of the request. An agency is not obligated to supplement
				  responses. Therefore, if a public record is created or comes into the possession
				  of the agency after the request is received by the agency, it is not responsive
				  to the request and need not be provided. A requestor must make a new request to
				  obtain subsequently created public records.
Sometimes more than one agency holds the same record. When more
				  than one agency holds a record, and a requestor makes a request to the first
				  agency (agency A), agency A cannot respond to the request by telling the
				  requestor to obtain the record from the second agency (agency B). Instead, an
				  agency must provide access to a record it holds regardless of its availability
				  from another agency.4
However, an agency is not required to go outside its own public
				  records to respond to a request.5 If agency A never
				  prepared, owned, used or retained a record, but the record is available at agency
				  B, the requestor must make the request to agency B, not agency A.
An agency is not required to provide access to records that
				  were not requested. An agency does not "deny" a request when it does not provide
				  records that are outside the scope of the request because they were never asked
				  for.
(5)
Claiming
				exemptions.
(a)
Redactions.
If a portion of a record is exempt from disclosure, but the remainder is not, an
				agency generally is required to redact (black out) the exempt portion and then
				provide the remainder.
				RCW
				  42.56.210(1). There are a few
				exceptions. 
				6 Withholding an entire record where only
				a portion of it is exempt violates the act. 
				7 Some records are almost entirely exempt
				but small portions remain nonexempt. For example, information revealing the
				identity of a crime victim is exempt from disclosure if certain conditions are
				met.
				RCW
				  42.56.240(2). If a requestor
				requested a police report in a case in which charges have been filed, and the
				conditions of
				RCW
				  42.56.240(2) are met, the
				agency must redact the victim's identifying information but provide the rest of
				the report.
Statistical information "not descriptive of any readily
				  identifiable person or persons" is generally not subject to redaction or
				  withholding.
				  RCW
				    42.56.210(1). For example, if
				  a statute exempted the identity of a person who had been assessed a particular
				  kind of penalty, and an agency record showed the amount of penalties assessed
				  against various persons, the agency must provide the record with the names of the
				  persons redacted but with the penalty amounts remaining.
Originals should not be redacted. For paper records, an agency
				  should redact materials by first copying the record and then either using a black
				  marker on the copy or covering the exempt portions with copying tape, and then
				  making a copy. Another approach is to scan the paper record and redact it
				  electronically. It is often a good practice to keep the initial copies which were
				  redacted in case there is a need to make additional copies for disclosure or to
				  show what was redacted; in addition, an agency is required under its records
				  retention schedules to keep responses to a public records request for a defined
				  period of time. For electronic records such as databases, an agency can sometimes
				  redact a field of exempt information by excluding it from the set of fields to be
				  copied. For other electronic records, an agency may use software that permits it
				  to electronically redact on the copy of the record. However, in some instances
				  electronic redaction might not be feasible and a paper copy of the record with
				  traditional redaction might be the only way to provide the redacted record. If a
				  record is redacted electronically, by deleting a field of data or in any other
				  way, the agency must identify the redaction and state the basis for the claimed
				  exemption as required by
				  RCW
				    42.56.210(3).
(b)
Brief explanation of
				withholding.
When an agency claims an exemption for an entire record or
				portion of one, it must inform the requestor of the statutory exemption and
				provide a brief explanation of how the exemption applies to the record or portion
				withheld.
				RCW
				  42.56.210(3). The brief
				explanation should cite the statute the agency claims grants an exemption from
				disclosure. The brief explanation should provide enough information for a
				requestor to make a threshold determination of whether the claimed exemption is
				proper. Nonspecific claims of exemption such as "proprietary" or "privacy" are
				insufficient.
One way to properly provide a brief explanation of the withheld
				  record or redaction is for the agency to provide a withholding log, along with
				  the statutory citation permitting withholding, and a description of how the
				  exemption applies to the information withheld. The log identifies the type of
				  record, its date and number of pages, and the author or recipient of the record
				  (unless their identity is exempt). 
				  8 The withholding log need not be
				  elaborate but should allow a requestor to make a threshold determination of
				  whether the agency has properly invoked the exemption.
Another way to properly provide a brief explanation is to use
				  another format, such as a letter providing the required exemption citations,
				  description of records, and brief explanations. Another way to properly provide a
				  brief explanation is to have a code for each statutory exemption, place that code
				  on the redacted information, and attach a list of codes and the brief
				  explanations with the agency's response.