- Posted by Scott R. Sleight
- On October 29, 2013
Two recent fines against public agencies illustrate the consequences to government agencies for failing to comply with records requests under Washington’s Public Records Act.
The Public Records Act, RCW 42.56, requires public agencies to make available for public inspection and copying all “public records,” unless the record falls within specific exemptions set forth in the statute. The exemptions, broadly speaking, apply to personal information, medical information, and certain law enforcement records. See RCW 42.56.210-480 for the statutory exemptions. Notably, under RCW 42.56.210(3), an agency that refuses to allow inspection of any public record or redacts portions of a record must include a statement of the specific exemption authorizing the withholding of the record and a brief explanation of how the exemption applies to the record withheld.
Under RCW 42.56.520, an agency must respond “promptly” to requests. If an agency fails to respond, or if the requesting party believes that the agency has failed to either provide a reasonable estimate of the time that the agency requires to respond or improperly withholds records, the requesting party may file a motion with the superior court in the county in which a record is maintained to challenge the agency action. RCW 42.56.550(4) provides the following powerful remedy:
Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record.
The following two fines against the University of Washington (“UW”) and the City of Marysville (“the City”) reflect the risk an agency faces for failing to fully and timely respond to a public records request.
In Bichindaritz v. University of Washington,[i] Bichindaritz alleged that UW failed to comply fully with a Public Records Act Request issued in September 2009, requesting a complete copy of her personnel files at UW Tacoma and the Institute of Technology in Tacoma, where she had worked. Bichindaritz made the request to support a discrimination case against UW. Bichindaritz lost her discrimination case in federal court, but later discovered that UW had not produced certain records and brought this action against UW under the Public Records Act. Judge Benton, in a 22 page order, entered a penalty of $723,290.50 against UW. In addition, the Court will be awarding reasonable attorneys’ fees by separate motion that is yet to be heard. Read more.
In Cedar Grove v. City of Marysville,[ii] an award was entered under the Public Records Act against the City of Marysville for $143,740 (with an award of attorneys’ fees pending) after the City of Marysville withheld from production records in the possession of a consultant (Strategies) hired by the City to assist with a dispute with Cedar Grove over odor issues. Strategies, in turn, was communicating on behalf of the City with a third party. Strategies’ e?mails with the third party were not produced by the City because the City took the position that the records were not in its “possession.” The Court found that Strategies was acting on behalf of the City when communicating with third parties, meaning it was the functional equivalent of a City of Marysville employee during the period at issue. Accordingly, the Court held that the City violated the Public Records Act by withholding e?mails in the possession of Strategies from the City’s production:
Specifically, I find that Marysville’s explanation regarding these documents-that they were not allegedly within the possession or control of Marysville-was a situation only created to intentionally provide Marysville with ‘plausible deniability’ of Strategies’ activities and to attempt to insulate the documents created during those activities from production. Marysville knew what Strategies was doing, paid them for those activities, was generally aware that there were documents in Strategies’ possession created during those activities, and discussed the contents of some of those documents with Strategies.
Read the full Order. Thus, even though the e?mails between Strategies and the third party were not in the City’s possession, the City was obligated under the Public Records Act to produce the e?mails.
Comment: These decisions reflect the power any contractor has to cause disclosure of public records on a public project. We can assist with this process.
[i] Bichindaritz v. University of Washington, No. 12-2-05747-8 SEA (King County Superior Court filed Sept. 6, 2013) (Findings of Fact and Conclusions of Law).
[ii] Cedar Grove v. City of Marysville, No. 12-2-07577-6 (Snohomish County Superior Court filed Sept. 8, 2013) (Order Granting Plaintiff’s Motion for Summary Judgment Regarding Penalties).