The public records disclosure statutes are confusing at times, but some basic principles can be distilled:
1. Most of the records of a city or county are public records, including things written on paper or recorded electronically, photographs, audio recordings, survey documents, construction plans, etc. (See the definitions of "public record" and "writing" in RCW 42.17.020.)
2. Cities and counties are required to respond in writing within five days to any public records disclosure request. The response can (1) provide for inspection and/or copying of the records; (2) acknowledge receipt of the request and provide an estimate of the time needed to produce the records; or (3) deny the request. (See RCW 42.17.320.) The statute also lists the permissible reasons for taking more than five days to actually produce the documents.
3. Public agencies cannot charge for the time required to locate a public record, but can charge for the reasonable costs if a person requests copies of public records. The maximum per page cost for photocopies can only exceed fifteen cents if the agency has determined that its actual costs exceed fifteen cents per page. (See RCW 42.17.260(7), (8), and 42.17.300.)
4. Some public records are prohibited from being disclosed (most personal tax records, medical records, etc) and some are exempted from disclosure (certain active criminal investigation files, preliminary drafts of agency policies, etc). The primary exemptions are listed in RCW 42.17.310, but the disclosure prohibitions are located at numerous places throughout the state statutes.
5. If a portion of a public record is exempt from disclosure or prohibited from being disclosed, the portion that is exempt or prohibited should be redacted (whited-out or some other such technique) and the rest of the document disclosed.
6. Whenever a city or county agency refuses to disclose a record or a portion of a record, the agency must provide a statement of the specific exemption relied upon and a brief explanation of how the exemption applies to the record withheld. (See RCW 42.17.310(3).)
7. Local governments may not ask the reason for the disclosure request; however, when the request is for a list of persons, the agency should ask whether it is to be used for a commercial purpose. If such a list is to be used for a commercial purpose, disclosure should be denied. (See RCW 42.17.270.)
8. Public agencies must respond to requests for disclosure received by mail.
(See RCW 42.17.270.) So far, neither the statutes nor case law have addressed the issue of public disclosure requests received by e-mail.
9. Local government jurisdictions are not required to create documents in order to respond to a request for certain information. Rather, they must produce existing documents for review and copying.
10. Public agencies are not required to compile information from various documents so that information is in a form that is more useful to a requestor.
11. There is statutory immunity from suit for local government officials or employees for any loss or damage based upon the release of a public record if the official or employee acted in good faith in attempting to comply with the state public record disclosure act. (See RCW 42.17.258.)
Electronic records and databases create a variety of unique disclosure problems. For example, many agencies now maintain various electronic mailing lists. There is a specific prohibition on disclosure of lists of individuals that are requested for commercial purposes. (See RCW 42.17.260(9).)
1. Check to make sure that your city or county has adopted procedures for handling public records disclosure requests. County departments that operate with some degree of autonomy should make sure that their department's procedures are consistent with the overall county policies and procedures.
The adopted procedures should include a statement of the charges for the copying of public records. (See RCW 42.17.300.) See item #3, above.
2. Public agencies are required to either maintain an index of their public records or publish a formal order explaining why maintaining such an index would be unduly burdensome. (See RCW 42.17.260(3) and (4).) Has your agency complied?
3. Cities and counties are required to maintain a list of the exemptions (other than those listed in Chapter 42.17 RCW) relied upon by the agency to deny disclosure of public records maintained by the agency. (See RCW 42.17.260(2).) Has your agency complied?
4. All local government jurisdictions should periodically train employees who handle requests for disclosure of public records.
5. Whenever you are unsure about whether a record should be disclosed, review the issue with your supervisor or the attorney advising your jurisdiction. There are substantial financial penalties for not responding in a timely or complete manner to requests for public disclosure. (See RCW 42.17.340(4).)
1. Advice from your city attorney or county prosecutor.
2. The Attorney General's Open Records & Open Meetings Deskbook (to be soon updated). This excellent resource is available online at:
http://www.wa.gov/ago/records/.
3. MRSC has a publication titled Public Records Disclosure. This publication may be read or downloaded from the MRSC Web site at:
http://www.mrsc.org/Publications/textprd.aspx. The appendices of the publication provide sample procedures and forms. Paper copies may be obtained by calling MRSC.
4. The MRSC Web site has a section devoted to public records disclosure issues that is periodically updated. The Web site includes sample disclosure policies, summaries of relevant recent court cases, and links to additional resources. The public disclosure laws apply equally to counties and cities and towns, so city or county policies are useful examples.
5. Call one of the MRSC legal consultants for advice. Keep in mind that our assistance is supplementary, and is not a substitute for the legal advice provided by your city attorney or prosecutor.
Jim Doherty Legal Consultant Municipal Research & Services Center
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The basic requirement of the Open Public Meetings Act (chapter 42.30 RCW) is that, witha few exceptions, all meetings of "governing bodies" of "public agencies," including "subagencies," must be open to the public. So, the first issue to address when looking at the Act is whether it applies to a particular body.
Does the Act apply? Since cities and counties are "public agencies," the Act applies to their governing bodies - city councils, boards of county commissioners, and county councils. The governing bodies of "subagencies," such as planning commissions, civil service commissions, and boards of adjustment, are also subject to the Act. The governing bodies of these various subagencies are the boards and commissions themselves.
The Act also applies to a "committee" of a governing body "when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment." While it may be clear when a committee conducts hearings or takes testimony or public comment, it may not be so clear when a committee "acts on behalf" of a governing body. According to the attorney general's office, a committee acts on behalf of a governing body "when it exercises actual or de facto decision-making authority for the governing body." Contact your legal counsel and/or MRSC legal staff when you have questions about whether a committee is subject to the Act.
When is a governing body having a meeting? A meeting of a governing body takes place when it is taking action - transacting the business of the agency - which generally can occur only when a quorum of the body is meeting. A governing body is taking action, for example, when it is simply discussing a matter of city or county business; it does not actually have to be making decisions to be taking action under the Act.
There are two types of meetings: regular and special. A regular meeting is one held according to a schedule. A special meeting is any meeting other than a regular meeting. It does not matter that a meeting might be called something else - a workshop, study session, retreat - it is still either a regular or special meeting. The main difference between these two types of meetings, for purposes of the Act, lies in the fact that a special meeting requires certain notice. The notice of regular meetings is provided by the adopted schedule.
What are the procedural requirements for meetings? Certain procedural requirements apply to both regular and special meetings:
.a.. Meetings must be open to the public.
b.. No conditions (e.g., registering) may be imposed upon those attending, although disruptive people may be removed.
c.. Votes may not be by secret ballot.
d.. Governing bodies may meet in executive session, but only for a reason allowed by the Act and in accordance with certain procedures
Note that the Act does not give the public any rights to speak at meetings, although governing bodies typically extend this privilege in some form to the public. And, it does not require meetings to be held in any particular locality; however, other statutes impose some locational restrictions upon the councils of most classes of cities and upon boards of county commissioners.
Certain procedural requirements apply only to regular meetings:
.a.. The day, time, and place of regular meetings must be established by ordinance, resolution, order or rule, as may be required for the particular body.
b.. If the regular meeting date falls on a holiday, the meeting must be held on the next business day
Certain procedural requirements apply only to special meetings:
.a.. A special meeting may be called by the presiding officers or by a majority of the members of the body.
b.. Written notice must be provided by mail or in person at least 24 hours before the meeting to:
- - each member of the body
- - each newspaper of general circulation, and
- - each local radio or television station that has on file with the governing body a request to be notified.
c.. Written notice may be waived by a member in writing or by telegram and is waived with respect to any member who is present at the meeting when it is convened.
d.. The notice must specify:
.
- - the time and place of the special meeting and
- - the business to be transacted
e.. The governing body may take final action only concerning matters identified in the notice of the meeting.
f.. Notice is not required in the event of a true emergency.
Note that the Open Public Meetings Act does not require any notice to the public. However, other statutes require city and county governing bodies to establish procedures for notifying the public of the preliminary agendas of meetings
The Act allows meetings to be adjourned and continued to a later date under certain circumstances and by following certain procedures. See RCW 42.30.090.
What are the requirements for holding an executive session? An executive session is that part of a regular or special meeting that is closed to the public. An executive session may be held only for one of the purposes specified in RCW 42.30.110(1). The allowed purposes for an executive session that have relevance for city or county governing bodies are:
)a.. To consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price;
b.. To consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price;
c.. To review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs;
d.. To receive and evaluate complaints or charges brought against a public officer or employee;
e.. To evaluate the qualifications of an applicant for public employment or to review the performance of a public employee;
f.. To evaluate the qualifications of a candidate for appointment to elective office; and
g.. To discuss with legal counsel representing the agency matters relating to agency enforcement actions, or to discuss with legal counsel representing the agency litigation or potential litigation to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party, when public knowledge regarding the discussion is likely to result in an adverse legal or financial consequence to the agency. (RCW 42.30.110(1)(i) defines what is meant by "potential litigation."
If a governing body is not sure whether a proposed discussion may take place in executive session, consult with your legal counsel and/or MRSC legal staff. Executive sessions provide the most fertile ground for challenges under the Open Public Meetings Act.
For a governing body to properly meet in executive session, the presiding officer must publicly announce the executive session to those attending the meeting by stating:
.a.. the purpose of the executive session (which must be a purpose authorized by the Act), and
b.. the time when the executive session will end
What meetings are exempt from the Open Public Meetings Act? There are four situations where a governing body may meet and not be subject to the requirements of the Act, though only three have possible application to cities or counties:
.a.. proceedings concerned with formally issuing an order granting, suspending, revoking, or denying any license, permit, or certificate to engage in any business or occupation;
b.. that portion of a meeting of a quasi-judicial body which relates to a quasi-judicial matter between named parties as distinguished from a matter having general effect on the public or on a class or group; and
c.. collective bargaining sessions with employee organizations, including contract negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement; or that portion of a meeting during which the governing body is planning or adopting the strategy or position to be taken by the governing body during the course of any collective bargaining, professional negotiations, or grievance or mediation proceedings, or reviewing the proposals made in the negotiations or proceedings while in progress
What are the penalties for violating the Act? The only avenue provided by the Open Public Meetings Act to enforce its provisions or to impose a penalty for a violation of its provisions is by an action in superior court.
"Any person" may bring that action in superior court. If a superior court determines that a violation has occurred, liability may be imposed as follows:
a.. Individual liability. Members of a governing body who attend a meeting where action is taken in violation of the Act are subject to a $100 civil penalty if they attend with knowledge that the meeting is in violation of the Act. Note that a knowing or intentional violation of the Act may provide a legal basis for recall of an elected member of a governing body, although recall is not a penalty under the Act.
b.. City or county liability. The city or county is liable for all costs, including reasonable attorney fees. A city or county may be awarded reasonable expenses and attorney fees for frivolous challenges.
Any person may bring an action by mandamus or injunction to stop violations of the Act or to prevent threatened violations.
In addition, any actions (e.g. adoption of ordinances or resolutions) taken at meetings found to be in violation of the Act are null and void.
What are some resources available to cities and counties to help understand the Open Public Meetings Act? The above summary of the Open Public Meetings Act deals only with "the basics." It does not address all the details and nuances, nor does it discuss the many gray areas present in the Act. For more information about this important law, the following sources are available:
a.. Your city attorney or county prosecutor;
b.. The Attorney General's Open Records & Open Meetings Deskbook, available online at: http://www.wa.gov/ago/records/ (to be soon updated);
c.. The MRSC publication, The Open Public Meetings Act - How it Applies to Washington Cities, Towns and Counties. Report No. 39, September 1997 (to be soon updated), available in paper or at http://www.mrsc.org/Publications/textopma.aspx;
d.. A Web page at the MRSC Web site on the Open Public Meetings Act, at http://www.mrsc.org/Subjects/Legal/opma/pg1pkj.aspx;
e.. MRSC legal consultants. (Keep in mind that our assistance is supplementary, and is not a substitute for the legal advice provided by your city attorney or county prosecutor.)
Bob Meinig Legal Consultant Municipal Research & Services Center
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