Author
Eric M. Stahl, ericstahl@dwt.com
Michael J. Killeen, michaelkilleen@dwt.com
DAVIS WRIGHT TREMAINE
920 Fifth Avenue
Suite 3300
Seattle, Washington 98104
(206) 622-3150
Foreword
Washington’s public records and public meetings laws, passed separately in the early 1970s, are a product of the “open government” climate brought about by distrust of government, lack of accountability and by misuse of government power during the civil rights and Vietnam protest era. Citizen groups such as the League of Women Voters, Common Cause, Washington Coalition for Open Government, and others succeeded in promoting such legislation at a time when conservative opposition to such measures was discredited. Subsequent events of the 1970s, particularly Watergate, vindicated the need for the reform legislation; however, changes in the political climate, increasing sophistication of government agencies and their attorneys, decline of “open government” groups, and public antagonism towards the press led to legislative and judicial retrenchment from the mid-1980s to present, including an increase in the number and scope of exemptions.
The open records law was passed by Washington voters in November 1972 as Initiative 276. The law took effect January 1, 1973. Previously, there was an ill-defined common law right to public records that was seldom litigated.
Note: The open records law was part of the Public Disclosure Act, codified at RCW Ch. 42.17. Effective July 1, 2006, the open records law was re-organized and recodified as RCW Ch. 42.56 and has since been referred to as the Public Records Act.
The major thrust of Initiative 276 was reform of campaign financing and lobbying by requiring disclosure of sources of contributions and expenses. The public records portion of the initiative was a relatively small section and was not the focus of much debate. Since the drafters did not pay extensive attention to the public records section, it is sometimes hard to reconcile how certain sections fit together or what the precise intent is.
The only “legislative history” for Initiative 276 is the State of Washington Voters Pamphlet (November 7, 1972), which contains statements for and against the ballot measure as well as a summary of the proposed law, a summary of the law as it then existed, a summary of the effect the proposed law would have, and the actual text of the new law.
In interpreting the current public records law, appellate judges have cited the Voters Pamphlet as evidence of legislative “intent,” thus giving the Pamphlet some persuasive effect. The Pamphlet described the prior law as follows:
Access to public records is largely governed, under present law, by court decisions under which members of the public having a legitimate interest therein are entitled to examine all records in the custody of a public official which that official is required by law to maintain. However, in the case of records which the official having custody is not required by law to maintain, the disclosure or nondisclosure of information contained therein is largely within the discretion of this official.
(Emphasis added.)
The pamphlet went on to explain that the effect of Initiative 276 was to require disclosure of all public records “regardless of whether or not the particular record is one which the official having custody is required by law to maintain.” The Pamphlet also noted that state and local government agencies would have to meet a number of detailed requirements with respect to the maintenance and indexing of all the records and that public inspection was subject only to certain exceptions relating to “individual rights of privacy or other situations where the act deems the public interest would not best be served by open disclosure.” These statements, and others in the Pamphlet, are usually cited by appellate judges writing pro-disclosure opinions or dissents.
Appellate judges writing pro-disclosure opinions or dissents have also routinely cited the declaration of policy set forth at the beginning of the Act, Rev. Code of Wash. (“RCW”) 42.17.010(11) (now RCW 42.17A.010(11)), which says that “full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.”
Subsequently, there have been persistent efforts — some successful, some not — to add exemptions. The press, on the other hand, has been successful in obtaining significant pro-access amendments only on rare occasion. For example, in 1987, a restrictive definition of the “right to privacy” was formally added to the Act after some judicial waffling had created uncertainty with respect to the common law. RCW 42.56.050. In 1992, the Legislature adopted more than a dozen amendments requested by the press, including a broader definition of “public record,” a specific definition of “promptness,” increases in civil penalties, and immunity for public officials who release public records in good faith.
The current Open Public Meetings Act, which was adopted in 1971, has a preamble that is often cited by appellate judges:
The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
RCW 42.30.010. The Washington Supreme Court has referred to this preamble as one of the strongest statements of legislative policy contained in any state statute. Cathcart v. Andersen, 85 Wn.2d 102, 107, 530 P.2d 313 (1975). In 1992, the Legislature added this same language to the public records law. RCW 42.56.030.
There is very little legislative history available on most Washington law, including the Open Public Meetings Act. The Washington Legislature seldom maintains a record of floor debates and has nothing comparable to the Congressional Record or the committee reports prepared by the U.S. Congress. At best, there is an occasional colloquy put into the official record for the purpose of clarifying a particular point.
Consequently, the primary “authority” for interpreting the 1971 law is contained in Attorney General Opinion (“AGO”) No. 33 dated October 29, 1971 (and cited as 1971 Op. Atty. Gen. No. 33). This AGO recites the following history to the 1971 Act:
[By enactment of the 1971 Act], the legislature basically replaced our earlier 1953 public meetings act with a comprehensive new act dealing with this subject. This new act was patterned closely after a California statute, commonly referred to as the “Brown Act”; and it is also somewhat similar to an open meetings act which was passed several years ago in Florida . . . .
Before examining the provisions of the new act let us first, for comparative purposes, note the general thrust of the earlier law which it has replaced. Prior to August 9, 1971, when [the new law] became effective, the meetings of public agencies in this state — both state and local — were governed by RCW 42.32.010-.030. The first section of that act required that the adoption of any ordinance, resolution, rule, etc., be done in a meeting open to the public. If the date of that meeting was not fixed by law or rule, then in advance of the meeting there was to be notification to the press, radio and television in the county in which the meeting was to be held. The second section, RCW 42.32.020 specifically permitted the public agency to hold executive sessions and to exclude the public therefrom for all purposes other than “final adoption” of an ordinance, rule, regulation, etc. The third section, RCW 42.32.030, required that minutes be kept of all regular and special meetings, except executive sessions, and further required that those records be open for public inspection [this section continues to remain in effect].
Under this prior legislation it was quite possible for a public agency to take all the preliminary steps toward action, save only the final act of formal adoption of the rule or other directive, in sessions which were closed to the public. It is important that this be understood, because a legislature which enacts a new law such as that we are here considering must be presumed to have been aware of the scope and effect of its prior law on the subject and have intended to accomplish change therein.
The Open Public Meetings Act has been the subject of far less court interpretation and legislative revision than the Public Records Act. In part, this may be due to its clearer language and history. It also may reflect the OPMA’s comparatively weak remedies, which limit the incentives to pursue open-meeting violations.COMPARE
Open Records
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I. Statute
Note: Pursuant to RCW 42.56.570, the Washington Attorney General’s Office (AGO) has prepared a set of model rules regarding the Public Records Act. See WAC Ch. 44-14. Each state and local agency is urged to adopt these rules to provide greater clarity and uniformity in terms of how public records requests are handled. The original model rules, adopted in 2006, indirectly provided a good overview regarding interpretation of the Public Records Act and a guide to agency “best practices.” The rules were revised and, to some extent, watered down, in 2018. COMPARE
A. Who can request records?
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1. Status of requester
Any person may request records. RCW 42.56.080. “Person” includes an individual, public, private or governmental entity, or “any other organization or group of persons, however organized.” RCW 42.17.020(35) (2000). A requester does not have to establish a “need to know” in order to obtain access. RCW 42.56.080; Yacobellis v. City of Bellingham, 55 Wn. App. 706, 780 P.2d 272 (1989), pet. for review denied, 114 Wn.2d 1002, 788 P.2d 1077 (1990).
Per a 2017 amendment, an agency may deny “bot requests,” which are defined as request “for public records that an agency reasonably believes was automatically generated by a computer program or script” received multiple times in a 24-hour period, where “responding to the multiple requests would cause excessive interference with other essential functions of the agency.” RCW 42.56.080(3).COMPARE
2. Purpose of request
The Public Records Act contains a few restrictions based on the requester’s purpose: (1) Agencies may not sell or provide access to lists of individuals requested for commercial purposes. RCW 42.56.070(9). This prohibition applies to requests by commercial entities such as bill collectors or process servers, but not by governmental entities such as county sheriffs, the State Patrol, or a television reception improvement district not engaged in any “profit expecting” business activity. 1983 Op. Atty. Gen. No. 9. It is universally agreed that a newspaper, engaging in newsgathering, is not affected by this exemption. (2) Imprisoned criminals may be enjoined from obtaining otherwise disclosable records, if it is shown that the request was made to harass or intimidate a public agency or employee or to assist criminal activity, or would threaten the security of a correctional facility or any person. RCW 42.56.565. (3) Certain requesters are exempt from a statutory provision that generally allows law enforcement agencies to charge requesters the costs incurred in redacting exempt material from police body worn camera footage. The exemption applies to persons directly involved in the incident depicted; specific state minority affairs commissions; and attorneys pursuing civil rights claims. RCW 42.56.240(14)(e). (4) Under a 2017 amendment to the PRA, a request “for all or substantially all” of an agency’s records is not considered a valid request for identifiable records. RCW 42.56.080(1).COMPARE
3. Use of records
There are no other restrictions on subsequent use of information provided.COMPARE
4. Can an individual request records on behalf of a third party or organization?
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B. Whose records are and are not subject to the Act
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1. Executive branch
The Public Records Act applies to all state and local agencies. RCW 42.56.040, .070(1). There is no express statutory or case law concerning access to executives themselves, but the definition of “agency” appears broad enough to cover them. Relying on “separation of powers” concerns, the state supreme court has held that a qualified gubernatorial communications privilege is an exemption to the PRA. Freedom Found. v. Gregoire, 178 Wn.2d 686, 310 P.3d 1252 (2013). In practice, the governor can waive this executive privilegeCOMPARE
2. Legislative bodies
The Public Records Act applies to administrative records of the Clerk of the State House of Representatives and of the Secretary of the Senate. RCW 42.56.100. In 2019, the Washington Supreme Court held that individual state legislators’ offices are “agencies” under the PRA, but that the full House and Senate were not. Associated Press v. Wash. State Legislature, 194 Wn.2d 915, 454 P.3d 93 (2019).COMPARE
3. Courts
Records of the Judicial Qualification Commission are exempt. Garner v. Cherberg, 111 Wn.2d 811, 765 P.2d 1284 (1988). The Washington State Supreme Court has held that court case files are not subject to the Public Records Act. Nast v. Michaels, 107 Wn.2d 300, 730 P.2d 54 (1986). Subsequent cases have extended this rule to all records held by the judicial branch, including administrative documents and correspondence. Fed. Way v. Koenig, 167 Wn.2d 341, 217 P.3d 1172 (2009). Effective in 2016, the Washington Supreme Court adopted a rule (GR 31.1) that provides a presumption of access to such records, subject to all of the exemptions contained in the Public Records Act, as well as additional specific exemptions and a privacy-based “balancing test.”COMPARE
4. Nongovernmental bodies
Private entities generally are not subject to the Public Records Act, except in rare circumstances where they are found to be the “functional equivalent” of a public agency. Courts apply a fact-specific four-part test (which also applies under the OPMA) that looks to (1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government. See Fortgang v. Woodland Park Zoo, 187 Wn.2d 509, 387 P.3d 690 (2017); Cedar Grove Composting, Inc. v. City of Marysville, 188 Wn. App. 695, 354 P.3d 249 (2015); Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185, 181 P.3d 881 (2008); Telford v. Thurston Cnty. Bd. of Comm’rs, 95 Wn. App. 149, 974 P.2d 886 (1999).
Certain records of the Washington State Bar Association are publicly available, under a rule adopted by the Washington Supreme Court in 2014. See GR 12.4. The rule incorporates the exemptions of the PRA, and also exempts from disclosure bar admission and disciplinary records, among other things.COMPARE
5. Multi-state or regional bodies
Such bodies arguably fall within the legislative purpose of the Act. In Worthington v. Westnet, 182 Wn.2d 500, 341 P.3d 995 (2015), the state supreme court held that a regional drug enforcement task force could not, by interlocal agreement, declare itself to be outside the reach of the Public Records Act, and that the court should look to the body’s actual operational structure to determine whether it was an “agency” under the statute. There is special language in the Open Public Meetings Act for regional bodies of publicly owned utilities “formed by or pursuant to” Washington law. RCW 42.30.020(1)(d).COMPARE
6. Advisory boards and commissions, quasi-governmental entities
Such entities fall within the broad definition of “agency” under the Act. RCW 42.56.010(1).COMPARE
7. Others
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C. What records are and are not subject to the act?
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1. What kinds of records are covered?
The Act applies to all “public records,” defined as any record “relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” RCW 42.56.010. Courts have interpreted this broadly. For example, records regarding “community contributions” from Native American tribes to the State Gambling Commission are public records, because the Commission relies on those documents when negotiating compacts with the tribes. Confederated Tribes of Chehalis Reservation v. Johnson, 135 Wn.2d 734, 958 P.2d 260 (1998). In Concerned Ratepayers Association v. Public Utility District No. 1, 138 Wn.2d 950, 983 P.2d 635 (1999), the court found that an agency “used” a record that it had examined at the vendor’s site and subsequently cited in a feasibility study. Electronic “metadata” is disclosable as a public record if the metadata is specifically requested. O’Neill v. Shoreline, 170 Wn.2d 138, 240 P.3d 1149 (2010). The Act does not apply to requests for information rather than records. See Smith v. Okanogan Cnty., 100 Wn. App. 7, 994 P.2d 857 (2000); Bonamy v. City of Seattle, 92 Wn. App. 403, 994 P.2d 857 (1998).COMPARE
The term “records” includes any document, film, tape, recording, computer record, etc. RCW 42.56.010(3)–(4) (eff. Jan. 1, 2012). The Act does not require agencies to create records that do not exist. See Smith v. Okanogan Cnty., 100 Wn. App. 7, 994 P.2d 857 (2000).COMPARE
3. Are certain records available for inspection but not copying?
The statute does not distinguish between records available for inspection and records available for copying. But see Hudgens v. City of Renton, 49 Wn. App. 842, 746 P.2d 320 (1987) (noting that the Criminal Records Privacy Act exempts nonconviction data from copying provisions of the Public Records Act but not inspection provisions), review denied, 110 Wn.2d 1014 (1988). Agencies are permitted to adopt and enforce rules to protect records from damage or disorganization, or to prevent excessive interference with other essential agency functions. RCW 42.56.100.COMPARE
4. Telephone call logs
In Nissen v. Pierce County, 183 Wn.2d 863, 357 P.3d 45 (2015), the Washington Supreme Court held call logs prepared and retained by a third-party telecommunications company were not “public records,” even though they showed a public employee’s telephone usage. An appellate court held that Internet access logs held by a county, showing public employees’ internet activities were public records, but the state supreme court reversed that decision on statute of limitations grounds. Belenski v. Jefferson Cnty., 187 Wn. App. 724, 350 P.3d 689 (2015), rev’d on other grounds 186 Wn.2d 452, 378 P.3d 176 (2016).COMPARE
5. Electronic records (e.g., databases, metadata)
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Washington law defines “public record” broadly to include electronic formats. RCW 42.56.010. There is no provision in the Act permitting agencies to limit the format in which public records may be examined or copied. Consequently, the requester can choose any available format for receiving the records. Although the PRA does not expressly require an agency to provide unredacted e-mails in an electronic format, an agency must do so where reasonable and feasible, under the PRA’s “fullest assistance” provision (RCW 42.56.100). Mechling v. Monroe, 152 Wn. App. 830, 222 P.3d 808 (2009).COMPARE
b. Can the requester obtain a customized search of computer databases to fit particular needs
Yes, under a statute passed in 2017 that also allows the agency to charge a fee for such customized services. RCW 42.56.120(3).COMPARE
Nothing in the Washington statute suggests that the existence of information in the electronic form affects its openness. In fact, the opposite is true: electronic records fit within the definition of “records.” RCW 42.56.010.COMPARE
d. Online dissemination
The PRA provides that an agency may respond to a record request by providing a link to the requested record on the agency’s website (unless the requester lacks internet access, in which case the agency must provide a hard copy). RCW 42.56.520.COMPARE
6. Email
Emails held by public agencies are public records.COMPARE
7. Text messages and other electronic messages
Text messages that otherwise fall within the definition of “public records” are subject to disclosure under the PRA, even if they are held on a public employee’s personal device. Nissen v. Pierce Cnty., 183 Wn.2d 863, 357 P.3d 45 (2015).COMPARE
8. Social media posts
There is no statute or case law specifically addressing this issue.COMPARE
9. Computer software
There is no statute or case law specifically addressing this issue.COMPARE
10. Can a requester ask for the creation or compilation of a new record?
The PRA does not require an agency to create new records that do not already exist. An agency may respond to requests by providing customized access to existing databases, though it may assess fees (which must be disclosed in advance) if doing so requires use of data services not used by the agency for other agency purposes. RCW 42.56.120(3).COMPARE
D. Fee provisions
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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees
No fees may be charged merely for inspection or locating of public records, other than for certain customized requests. RCW 42.56.120. An agency may impose a reasonable charge for providing copies “which . . . shall not exceed the amount necessary to reimburse the agency . . . for its actual costs directly incident to such copying.” Id.COMPARE
2. Particular fee specifications or provisions
For photocopies, the default rate is fifteen cents per page. RCW 42.56.120. Agencies may charge ten cents per page for scanning records into an electronic format, and five cents for each four electronic files or attachment uploaded to email, cloud-based data storage service, or other means of electronic delivery. RCW 42.56.120. Agencies may charge higher rates, but only if they establish that a higher rate is necessary to recover actual costs and the basis for computation of the charge. RCW 42.56.070(7). Alternatively, an agency may charge a flat fee of up to two dollars for any request. RCW 42.56.120. The Act sets forth criteria which may be considered in determining such cost. Id.; see also RCW 70.58.107 (2000) (regarding birth, death, marriage, and dissolution certificates).
Search fees may not be charged to requesters under the Public Records Act, except for customized requests, and then only if the fees are discussed and agreed to in advance. RCW 42.56.120.COMPARE
3. Provisions for fee waivers
As a practical matter, many agencies do not charge for small quantities of records in order to avoid the administrative time and expense of collecting and accounting for small fees. An agency may waive any charge assessed for a request, if the agency has adopted a rule so providing. RCW 42.56.120(4).COMPARE
4. Requirements or prohibitions regarding advance payment
An agency may require a deposit in an amount not to exceed 10% of the estimated cost of providing copies for a request. RCW 42.56.120. If an agency makes records available in installments, the agency may charge for each part of the request as it is provided. Id.COMPARE
5. Have agencies imposed prohibitive fees to discourage requesters?
Anecdotally, some counties have considered imposing what have been viewed as prohibitively high fees, but the media have successfully prevailed upon these counties not to follow through with the proposals.COMPARE
6. Fees for electronic records
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E. Who enforces the Act?
The Public Records Act is generally enforced through private litigation. Any person who has been refused to allow inspection or copying of public records may demand judicial review through a civil lawsuit. RCW 42.56.550. Likewise, any person who believes that an agency has not provided a reasonable estimate of time that the agency requires to respond to a public records request may seek judicial review. Id. Alternatively, if a state agency denies a person an opportunity to inspect or copy a public record, the individual may request the attorney general’s office to review the matter and provide a written opinion. RCW 42.56.530. Such opinions are not binding on the agency, but may be persuasive.
An agency, or a third party named in or referred to in a record, is entitled to seek a court order enjoining the inspection of a public record. RCW 42.56.540; Dawson v. Daly, 120 Wn.2d 782, 845 P.2d 995 (1993). To obtain such an order, the agency or third party must establish not only that a specific exemption applies, but also that disclosure (1) clearly would not be in the public interest, and (2) would substantially and irreparably damage a person or a vital government interest. RCW 42.56.540; Lyft, Inc. v. City of Seattle, 190 Wn.2d 769, 773, 418 P.3d 102, 104 (2018).
An agency, or a third party named in or referred to in a record, is entitled to seek a court order enjoining the inspection of a public record. RCW 42.56.540. Dawson v. Daly, 120 Wn.2d 782, 845 P.2d 995 (1993).COMPARE
1. Attorney General’s role
If a state agency denies a person an opportunity to inspect or copy a public record, the individual may request the attorney general’s office to review the matter and provide a written opinion. RCW 42.56.530. Such opinions are not binding on an agency or a court but may be persuasive.COMPARE
2. Availability of an ombudsman
There is no ombudsperson provision in the Public Records Act. The Washington Attorney General’s Office has an “open government ombudsman,” who is available to consult on and assist with public records and open meetings issues. http://www.atg.wa.gov/OpenGovernment/Ombudsman.aspx.COMPARE
3. Commission or agency enforcement
There is no commission or agency that enforces the Public Records Act. The state Public Disclosure Commission only enforces the campaign finance disclosure aspects of the Public Disclosure Act. RCW 42.17.350, .360, .390.COMPARE
F. Are there sanctions for noncompliance?
A requester who prevails against an agency that has denied a record must be awarded their costs, including reasonable attorneys’ fees. RCW 42.56.505(4). In addition, the court must award civil penalties in an amount not to exceed $100 per day for each day that the requester was denied the right to inspect or copy a public record. Id. The factors courts apply in determining the amount of such awards are set out in Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010).COMPARE
G. Record-holder obligations
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1. Search obligations
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2. Proactive disclosure requirements
Agencies are not required to proactively post or release public records, but are not permitted to charge for records that they routinely post on their websites. RCW 42.56.120.COMPARE
3. Records retention requirements
Public agencies must retain public records in accordance with RCW 40.14.060 and retention schedules approved by the Secretary of State’s Office. Intentional destruction of public records in violation of the retention requirements is a felony. RCW 40.16.010.COMPARE
4. Provisions for broad, vague, or burdensome requests
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II. Exemptions and other legal limitations
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A. Exemptions in the open records statute
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1. Character of exemptions
Under case law, the coverage of the Act is liberally construed and its exemptions narrowly confined. RCW 42.56.030. Disclosure is required unless a specific exemption applies. RCW 42.56.070.
The exemptions in the Public Records Act are permissive, not mandatory. Thus, an agency can release information even if an exemption applies.
Washington courts will sometimes look to federal FOIA case law when interpreting the Public Records Act. Dawson v. Daly, 120 Wn.2d 782, 791, 845 P.2d 995 (1993). The exemptions are only loosely patterned after the federal act, and in some cases the two statutes are “markedly different.” Laborers Int’l Union v. City of Aberdeen, 31 Wn. App. 445, 448, 642 P.2d 418 (1982).COMPARE
2. Discussion of each exemption
a. Clients of the State. This exemption permits nondisclosure of personal information “in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients.” RCW 42.56.230(1). The exemption is limited to information maintained in the collection of individual client files that the agency necessarily maintains for the client. Lindeman v. Kelso Sch. Dist., 162 Wn.2d 196, 172 P.3d 329 (2007).
The names and addresses of property owners who contract with the city for federal HUD loans are not “clients” of the city, nor are their names and addresses “personal information” under the exemption. Walla Walla Union-Bulletin v. Walla Walla City Council, 7 Med. L. Rptr. 1858 (Walla Walla Cty. July 14, 1981).
Personal information of children and family members enrolled in certain childcare and recreational services is exempt from disclosure. RCW 42.56.230(2).
b. Employees. The statute permits nondisclosure of personal information about public officials and employees “to the extent that disclosure would violate their right to privacy.” RCW 42.56.230(3). The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050; Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). Agencies must prove both prongs of the test and cannot balance the public interest against the privacy interest. See Tacoma Pub. Library v. Woessner, 90 Wn. App. 357, 951 P.2d 357 (1998). Disclosure of the mere fact that a public employer is investigating a public employee, or that the employee is on administrative leave, does not violate the employee’s right to privacy. Predisik v. Spokane Sch. Dist. No. 81, 182 Wn.2d 896, 346 P.3d 737 (2015). Release of records related to teacher certification revocations, particularly as they pertain to teachers’ sexual misconduct with students, does not violate the teachers’ right to privacy. Brouillet v. Cowles Publ’g Co., 114 Wn.2d 788, 791 P.2d 526 (1990). However, disclosure of the identity of a teacher accused of sexual misconduct violates the teacher’s right to privacy under the statute if the allegation is not substantiated. Bellevue John Does 1-11 v. Bellevue Sch. Dist. #405, 164 Wn.2d 199, 189 P.3d 139 (2008).
The exemption does not cover police officer complaints about their police chief’s job performance. Columbian Publ’g Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983). A discharged school employee can obtain performance evaluations of other employees; however, the names of coworkers will be redacted unless there is a specific showing that the right to privacy should not apply. Ollie v. Highland Sch. Dist., 50 Wn. App. 639, 749 P.2d 757, review denied, 110 Wn.2d 1040 (1988). Disclosure of performance evaluations, which do not discuss any specific instances of misconduct or the performance of public duties, is presumptively highly offensive to a reasonable person and not of legitimate public concern, and thus violative of the employee’s privacy rights and exempt. Dawson v. Daly, 120 Wn.2d 782, 797, 845 P.2d 995 (1993). Beltran v. DSHS, 98 Wn. App. 245, 989 P.2d 604. However, evaluations of high level employees, such as a city manager or high-ranking police official, have more significant public interest and are not exempt under Dawson. See Spokane Research v. City of Spokane, 99 Wn. App. 452, 994 P.2d 267 (2000); City of Fife v. Hicks, 186 Wn. App. 122, 345 P.3d 1 (2015).
The legitimacy of public concern is determined by balancing the public’s interest in disclosure against the public’s interest in the efficient administration of government. Thus, the public has a legitimate concern in seeing a settlement agreement between a city and one of its top employees because “[t]he fact a public body may not be able to keep the specific terms of a settlement agreement confidential does not have such a chilling effect on future settlements so as to affect the efficient administration of government.” Yakima Newspapers, Inc. v. City of Yakima, 77 Wn. App. 319, 328, 890 P.2d 544 (1995).
The state Attorney General has stated that public employee salary information is generally not personal information which may be withheld, although individual employee deductions may be protected by a right to privacy. 1973 Op. Atty. Gen. No. 4. Employee identification numbers are exempt, but names must be released. See Tacoma Pub. Library v. Woessner, 90 Wn. App. 357, 951 P.2d 357 (1998). Information provided by job applicants for a city plumber’s job, however, including reasons for leaving the previous job, criminal convictions and handicaps, may be withheld. Wash. State Human Rights Comm’n v. City of Seattle, 25 Wn. App. 364, 607 P.2d 332 (1980). In 1987, the legislature exempted all applications for public employment, including resumes and names included in those applications. RCW 42.56.250(2). The courts also have held that applications are exempt under RCW 42.56.210(1)(b). Beltran v. DSHS, 98 Wn. App. 245, 989 P.2d 604 (1999).
In addition, residential addresses, telephone numbers, personal email addresses and other specific personal information of public employees or volunteers may be withheld from public disclosure. RCW 42.56.250(4). This exemption applies only to records held in personnel files and public employment records. Thus, a public official’s personal email address is not exempt if it appears in other types of public records. Mechling v. Monroe, 152 Wn. App. 830, 222 P.3d 808 (2009).
The Washington Supreme Court has held that the state constitutional right of privacy does not apply to prevent disclosure of public records containing public employees’ dates of birth in connection with their full name. Wash. Pub. Emps. Ass’n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 450 P.3d 601 (2019).
Public employees who seek advice under an agency process concerning unfair labor practices, or use internal, informal anti-discrimination procedures, have the right to remain anonymous. RCW 42.56.250(5)–(6).
Also exempt are criminal history records checks for certain board staff finalist candidates. RCW 42.56.250(7).
Photographs and birthdates of criminal justice agency employees are exempt from disclosure. This exemption does not apply to the news media. RCW 42.56.250(8).
GPS data that would indicate the location of a public employee’s or volunteer’s residence is exempt from disclosure. RCW 42.56.250(10).
Also exempt is voluntarily submitted personal demographic information (including race, ethnicity and sexual orientation) collected by a state agency or higher education institution, though aggregated information is subject to disclosure. RCW 42.56.250(11). Even if a court orders release of documents, an employee or other person may sue the agency for common law invasion of privacy. See Corbally v. Kennewick Sch. Dist., 94 Wn. App. 736, 973 P.2d 1074 (1999). But see Corey v. Pierce Cnty., 154 Wn. App. 752, 766, 225 P.3d 367 (2010) (ruling dismissed employee’s claim for “negligent dissemination of harmful information” was barred as a matter of law). The mere fact that records may not be disclosable under a PRA privacy-based exemption does not in itself give rise to an invasion of privacy action against media entities that report the information contained in the record. See Cawley-Herrmann v. Meredith Corp., 654 F.Supp.2d 1264 (W.D. Wash. 2009).
c. Taxpayer, Financial and Personal License Information. Tax returns, and information that would result in unfair competitive disadvantage to the taxpayer or violate the taxpayer’s right to privacy, are generally exempt. RCW 42.56.230(4). The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050; Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). Credit/debit card numbers and other financial account numbers are also exempt. RCW 42.56.230(4)–(5). Personal information contained in documents used to apply for a driver’s license or identicard is exempt under RCW 42.56.230(6).
d. Investigative Records. This exemption applies to specific investigative records, the nondisclosure of which is essential to law enforcement or to protect a person’s right to privacy. RCW 42.56.240(1). Reports generated as part of routine administrative procedure, not as the result of a specific complaint or allegation of misconduct, are not “investigative reports.” Cowles Publ’g Co. v. City of Spokane, 69 Wn. App. 678, 683, 849 P.2d 1271 (noting that police reports regarding contact by any K-9 dog with citizen, generated as matter of course, are not investigative records), review denied, 122 Wn.2d 1013, 863 P.2d 73 (1993); Wade’s Eastside Gun Shop, Inc. v. Dep’t of Labor & Indus., 185 Wn.2d 270, 372 P.3d 97 (2016) (noting that a workplace safety investigation does not implicate this exemption). Reports which could trigger an investigation and imposition of sanctions if warranted, but which are not themselves used for “law enforcement,” are not exempt. Id. at 684.
Investigative records related to pending criminal matters are presumptively subject to disclosure once a suspect has been arrested and referred to the prosecutor for a charging decision. Seattle Times Co. v. Serko, 170 Wn.2d 581, 243 P.3d 919 (2010); Cowles Publ’g Co. v. Spokane Police Dep’t, 139 Wn.2d 472, 987 P.2d 620 (1999). The state supreme court at one point created a categorical exemption for “open and active” police investigation files in which disclosure would jeopardize the ability to solve the case. Newman v. King Cnty., 133 Wn.2d 565, 947 P.2d 712 (1997). The court later clarified that the categorical exemption only exists for “information contained in an open, active police investigation file.” Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998) (refusing to extend a categorical exemption to work product materials under RCW 42.56.290). In Cowles and again in Serko, the court further clarified that the concept of categorical exemption did not apply once the case was referred to the prosecutor’s office, even if the files remained technically open. See also Sargent v. Seattle Police Dep’t, 179 Wn.2d 376, 314 P.3d 1093 (2013).
The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050; Hearst, 90 Wn.2d at 137–38. In a torturous opinion, a Washington court held that whether statements in public records are “true” bears on whether the records are of legitimate concern to the public. City of Tacoma v. Tacoma News, Inc., 65 Wn. App. 140, 827 P.2d 1094, review denied, 119 Wn.2d 1020, 838 P.2d 692 (1992) (ruling police records of investigation based on unsubstantiated allegation of child abuse against political candidate were not of legitimate public concern). But see Hudgens v. City of Renton, 49 Wn. App. 842, 746 P.2d 320 (1987) (ruling that arrest report, citation, and patrol report must be disclosed despite acquittal), review denied, 110 Wn.2d 1014 (1988). In Bellevue John Does 1-11 v. Bellevue School District #405, 164 Wn.2d 199, 189 P.3d 139 (2008), the Washington Supreme Court held that the identities of teachers accused of sexual misconduct are not subject to disclosure in cases where the allegations were not substantiated.
Police body worn camera recordings are subject to disclosure except to the extent necessary to protect a person’s “right to privacy,” under a modified version of the privacy test discussed above. Certain types of recordings are presumed to be “highly offensive,” including depictions showing the inside of medical facilities and residences, intimate images, minors and the body of a deceased person. RCW 42.56.240(14). Public records requests for bodycam footage must also specify a particular individual involved in an incident, a specific officer, or the incident’s time and location. Id.
Criminal records on charges that have not resulted in conviction or other adverse disposition and for which formal proceedings are over are closed to the public. RCW 10.97.050; id. 10.97.030(2). Internal police investigations are considered exempt, even though no criminal charges are involved and no right to privacy is violated. The Washington Supreme Court has said that public disclosure of such investigations would render law enforcement ineffective. Cowles Publ’g Co. v. State Patrol, 109 Wn.2d 712, 748 P.2d 597. Nevertheless, an investigative report concerning liquor law violations at a police guild party is not exempt on grounds that public disclosure would render law enforcement ineffective or violate the officers’ privacy. Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 769 P.2d 283. In addition, internal investigation records are not exempt if requested as part of the discovery process, because a trial court can craft a protective order to alleviate law enforcement concerns. State v. Jones, 96 Wn. App. 369, 979 P.2d 898 (1999).
e. Identity of Witnesses, Victims, and Persons Filing Complaints. The identity of witnesses, victims, and persons who file criminal or quasi-criminal complaints with agencies other than the Public Disclosure Commission if the complainant indicates at the time of filing the complaint that the complainant desires for it to be confidential, is exempt if disclosure would endanger a person’s life, property or physical safety. RCW 42.56.240(2).
Information revealing the identity of child victims of sexual assault who are under age 18 is confidential. RCW 42.56.240(5).
f. Other crime/law enforcement records. License applications for concealed pistols are exempt from public disclosure. RCW 42.56.240(4). The felony firearm offense conviction database is exempt under RCW 42.56.240(10).
The statewide gang database is exempt from disclosure. RCW 42.45.240(6).
Data from the state pseudoephedrine sales tracking system is exempt from disclosure. RCW 42.56.240(7).
Identifying information submitted to the statewide unified sex offender notification and registration program for the purpose of receiving notification regarding a registered sex offender is exempt from disclosure. RCW 42.56.240(8).
Personally identifying information collected by law enforcement from local security alarm system and crime watch programs is exempt from disclosure. RCW 42.56.240(9).
g. Test Questions. An agency may withhold “[t]est questions, scoring keys, and other examination data used to administer a license, employment, or academic examination.” RCW 42.56.250(1).
h. Real Estate Appraisals. Real estate appraisals made in connection with the purchase or sale of property are exempt from disclosure until the earlier of (1) three years from the date of the appraisal or (2) consummation or abandonment of the transaction. RCW 42.56.260.
i. Commercially Valuable Information. An agency may withhold any valuable formulae, designs, drawings or research data obtained within five years of the request for disclosure if disclosure would produce private gain and public loss. RCW 42.56.270(1). “Research data” is defined as “a body of facts and information collected for a specific purpose and derived from close, careful study, or from scholarly or scientific investigation or inquiry.” Servais v. Port of Bellingham, 127 Wn.2d 820, 832, 904 P.2d 1124 (1995) (holding that cash flow report prepared for Port’s use in negotiations with developers was exempt). Research data includes raw data and the guiding hypotheses that structure the data, Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 255, 884 P.2d 592 (1994), and is not limited to scientific facts. Servais, 127 Wn.2d at 831. The exemption does not cover accounting reports developed to secure a federal loan. See Spokane Research v. City of Spokane, 96 Wn. App. 569, 994 P.2d 267 (1999).
RCW 42.56.270, which is frequently amended and updated, sets out a number of additional specific exemptions related to financial or proprietary information held by specified state boards and agencies, including certain information submitted by bidders in connection with highway or ferry system construction; loan information held by state sponsored development programs; certain private commercial information supplied to state sponsored export services and industrial development corporations, and the state Investment Board; and financial information provided by health care providers for workers compensation programs.
j. Deliberative Process. This exemption allows nondisclosure of intra-agency deliberative materials. RCW 42.56.280. Inter-agency materials are not exempt. Columbian Publ’g Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983). The exemption applies to opinions, such as faculty tenure evaluations, Hafermehl v. Univ. of Wash., 29 Wn. App. 366, 628 P.2d 846 (1981), but does not include purely factual matters, Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978), or the raw data on which a decision is based. PAWS, 125 Wn.2d at 256. Deliberative materials are exempt only until the policies or recommendations contained in such records are implemented. Dawson v. Daly, 120 Wn.2d 782, 793, 845 P.2d 995 (1993).
k. Discovery Exemption. If an agency is a party to a lawsuit, it may withhold any records relevant to that suit that would be protected under rules of pretrial discovery. RCW 42.56.290. Civil, rather than criminal, discovery rules apply. Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998). This exemption applies to “reasonably anticipated litigation,” id. at 791, and to records created to evaluate an agency’s potential liability, Overlake Fund v. City of Bellevue, 70 Wn. App. 789, 794, 855 P.2d 706 (1993), review denied, 123 Wn.2d 1009, 869 P.2d 1084 (1994), but it does not apply where the records may only have some possible relevance to a future hypothetical dispute with a third party. Yakima Newspapers, Inc. v. City of Yakima, 77 Wn. App. 319, 325, 890 P.2d 544 (1995). As reflected in the work product rule, the exemption also applies after the termination of litigation. Dawson, 120 Wn.2d at 790. A settlement agreement is not protected under the work product rule and, thus, this exemption, because it is not prepared in anticipation of litigation but in an attempt to conclude litigation. Yakima Newspapers, 77 Wn. App. at 326-27. The courts have refused to create a blanket work product exemption to everything in a prosecutor’s litigation file. Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998). But see Koenig v. Pierce Cnty., 151 Wn. App. 221, 211 P.3d 423 (2009) (exempting transcript of a witness statement under work product exemption because it was sought by the prosecutor in anticipation of litigation). In Seattle Times Co. v. Serko, 170 Wn.2d 581, 243 P.3d 919 (2010), the Washington Supreme Court held that police investigative records generally are not exempt from PRA disclosure as prosecutorial work product. The court expressly rejected the argument that “a law enforcement agency is merely an arm of the prosecutor’s office for purposes of a work product analysis.”
In Morgan v. Federal Way, 166 Wn.2d 747, 213 P.3d 596 (2009), the Washington Supreme Court held that a city’s report investigating a hostile work environment complaint against a municipal judge was subject to disclosure, and did not qualify as work product because at the time of the investigation, no litigation had been threatened or anticipated.
l. Archaeological Site Protection. Records identifying the location of archaeological sites may be withheld to avoid looting or degradation of sites. RCW 42.56.300.
m. Library Records. Library records that are used primarily to maintain control of library materials may be withheld to protect the identity of the user. RCW 42.56.310.
n. Schools. Certain financial disclosures that private vocational schools must file by law may be withheld from public disclosure. RCW 42.56.320(1). Any state college, library or archive that receives a gift or grant which by its terms restricts public access to certain records may withhold such records. RCW 42.56.320(4). RCW 42.56.315, enacted in 2020, exempts a range of records shared among school districts regarding notification of past offenses by transferred students. RCW 42.56.375 exempts records identifying witnesses and victims of sexual misconduct in postsecondary educational institutions.
o. Utilities and Transportation Records. Certain records filed with the state Utilities and Transportation Commission that a court has determined are confidential are exempt. RCW 42.56.330(1).
p. Utility and Transit Customers. Residential addresses and telephone numbers of customers of a public utility may be withheld from public disclosure. Personal records related to carpool programs, transit passes, toll transponders and the like are also exempt. RCW 42.56.330(2)-(9).
q. Timeshare Condominiums. Membership lists in timeshare projects that must be filed by law may be withheld from public disclosure. RCW 42.56.340.
r. Health Care Providers. The Social Security numbers, residential addresses, and phone numbers of health care providers may be withheld from disclosure. RCW 42.56.350. Records obtained from or on behalf of HMOs, entities providing disability insurance or health care services, pharmaceutical manufacturers, or other entities which purchase, dispense or distribute drugs may be withheld. RCW 42.56.360(1)(b). Also, records created for and maintained by a heath care provider’s quality improvement committee are exempt. RCW 42.56.360(1)(c).
s. Domestic Violence. Client records maintained by a domestic violence shelter or rape crisis center are exempt. RCW 42.56.370.
t. Agricultural Information. Business information related to organic food product certification is protected from public inspection and copying. RCW 42.56.380(1). Other exemptions for personal and business information submitted in connection with specified agricultural programs are set out in RCW 42.56.380.
u. Medical Records. Health care information of patients is exempt except for certain directory information. RCW 42.56.360(2); RCW 70.02.
v. Check Casher/Seller. Residential addresses, telephone numbers, and financial statements in applications for check casher/seller licensing are exempt. RCW 42.56.450.
w. Impaired Physicians. Certain records involving disciplinary action under the impaired physicians program may be withheld from public disclosure. RCW 42.56.360(1)(e).
x. Life Insurance Policy Holders. Names and identifying information of owners of life insurance policies regulated by the insurance commissioner are exempt. RCW 42.56.400(3). Other exemptions applicable to insurance and financial institutions are set out in RCW 42.56.400.
y. Fireworks Records. Records produced pursuant to the state Fireworks Law are exempt from disclosure. RCW 42.56.460.
z. Security. Portions of records assembled, prepared or maintained to prevent or respond to criminal terrorist acts and specific and unique vulnerability assessments are exempt from disclosure. RCW 42.56.420(1). Also, records obtained as a result of national security briefings with state and local government are not subject to disclosure when they are not subject to disclosure under federal law. Id.; see also Nw. Gas Ass’n v. Wash. Utils. & Transp. Comm’n, 141 Wn. App. 98, 168 P.3d 443 (2007). Other information regarding security jails, schools, communications networks, and transportation system may be exempt. RCW 42.56.420(2)-(6).
aa. Fish and Wildlife. Specified commercial and recreational fish and wildlife data are exempt under RCW 42.56.430.COMPARE
B. Other statutory exclusions
The Public Records Act also exempts from disclosure any record for which disclosure is prohibited by another statute. RCW 42.56.070(1). There are dozens of such “other statutes” under state and federal law. Examples include:
- Criminal Records Privacy Act. The Act restricts access to pre-conviction and nonconviction records generally but not post-conviction records. Records of entry are accessible on a chronological basis, and records of those currently in the criminal justice system are not exempt. RCW 10.97.
- Juvenile Records. Juvenile offender hearings are presumed open (but may be judicially closed for good cause). RCW 13.40.140(6); 13.50.010; id. 13.50.050(2), (11). Juvenile dependency hearings and records, on the other hand, are presumptively closed. RCW 13.34.110. Court records other than the official file in a juvenile offender proceeding may not be released, except to those engaged in legitimate research for educational, scientific or public purposes where the anonymity of those mentioned in the records is preserved.
- Coroner Records. Coroner records that identify the deceased may be withheld for 48 hours or until the next of kin is notified, although the official may exercise discretion to release the records earlier to aid in identifying the deceased. RCW 68.50.300.
- Trade secrets. The Uniform Trade Secret Act (RCW ch. 19.08) operates as an “other statute” exemption. The Washington Supreme Court has held that the Public Records Act “is simply an improper means to acquire knowledge of a trade secret.” Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 884 P.2d 592 (1994). Generally, a matter is protected as a trade secret if it derives economic value from not being generally known or readily ascertainable by others, and is the subject of reasonable efforts to maintain its secrecy.
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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure
On the basis of the Public Records Act’s mandate that agencies disclose public records unless they fall within statutory exemptions, RCW 42.56.070(1), courts arguably should not be able to create additional exemptions. Prior to this amendment, some courts had created additional exemptions when it was thought to be in the “public interest” to protect certain documents from disclosure. In 1994, the Washington Supreme Court closed off a potential loophole in RCW 42.56.540, which states: “[E]xamination of any specific public record may be enjoined if . . . the superior court . . . finds that such examination would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions.”
The court held that Section 540 is simply a procedural provision allowing for an injunction suit and that parties seeking to avoid disclosure must rely on a specific statutory exemption, as well as establishing Section 540’s public interest and irreparable damage elements. Progressive Animal Welfare Soc’y v. University of Wash., 125 Wn.2d 243, 884 P.2d 592 (1994); Soter v. Cowles Publ’g Co., 162 Wn.2d 716, 174 P.3d 60 (2007).
Opponents of disclosure – typically, public employees or their unions – have periodically attempted to argue that disclosure under the PRA can violate their constitutional rights of privacy or association. Courts have rejected those arguments to date. Doe v. Reed, 130 S. Ct. 3348 (2010); Wash. Pub. Emps. Ass’n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 450 P.3d 601 (2019).COMPARE
D. Protective orders and government agreements to keep records confidential
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E. Interaction between federal and state law
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1. HIPAA
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2. DPPA
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3. FERPA
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4. Other
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F. Segregability requirements
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G. Agency obligation to identify basis of redaction or withholding
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III. Record categories – open or closed
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A. Autopsy and coroners reports
Autopsy reports are confidential under RCW 68.50.105.
Coroner records that identify the deceased may be withheld for 48 hours or until the next of kin is notified, although the official may exercise discretion to release the records earlier to aid in identifying the deceased. RCW 68.50.300.COMPARE
B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)
The Public Records Act does not specifically address administrative investigations as a separate category of records. Specific types of administrative investigative records may be subject to exemptions cited elsewhere in this outline.
Workplace safety investigations do not implicate the exemptions applicable to law enforcement investigations. Wade’s Eastside Gun Shop, Inc. v. Dep’t of Labor and Indus., 185 Wn.2d 270, 372 P.3d 97 (2016).COMPARE
C. Bank records
Examination reports and examination information obtained by the supervisor of banking are confidential under RCW 30.04A.075. However, investigation reports concerning applications for new banks are public. RCW 30.04A.075(7). Examination reports and information obtained by the department of financial institutions from banks, other financial institutions and securities brokers and investment advisers are confidential and exempt from public disclosure. RCW 42.56.400(6).COMPARE
D. Budgets
The only provision of the PRA addressing budgets is RCW 42.56.100, which includes within the definition of “public records” budgets held by the Clerk of the State House of Representatives and of the Secretary of the Senate. For other agencies, budgets are treated no differently than any other public record.COMPARE
E. Business records, financial data, trade secrets
An agency can withhold valuable formulae, designs, drawings, computer source code or object code and research data obtained within five years of the disclosure request if disclosure would produce private gain and public loss. RCW 42.56.270(1). The Washington Supreme Court has held that “the public records act may not be used to acquire knowledge of a trade secret.” Confederated Tribes of Chehalis Reservation v. Johnson, 135 Wn.2d 734, 748, 958 P.2d 260 (1998). But see Lyft, Inc. v. City of Seattle, 190 Wn.2d 769, 418 P.3d 102 (2018) (explaining that a third party may not be entitled to block public disclosure of trade secrets contained in public records, absent heightened showing required by PRA injunction provision, RCW 42.56.540).
RCW 42.56.270 exempts a wide variety of financial and commercial information supplied to state agencies by requirement of law, including (among others) submissions in connection with ferry construction or road construction bids, RCW 42.56.270(2), export services, RCW 42.56.270(3), applications for loans in connection with state-sponsored programs, RCW 42.56.270(4), industrial development corporations, RCW 42.56.270(5), public sector retirement funds, RCW 42.56.270(6), workers’ compensation contractors, RCW 42.56.270(7), the Investment Opportunities Office, RCW 42.56.270(12), applications for a liquor, gambling or lottery retail license, RCW 42.56.270(10), submissions to the Department of Social and Health Services in connection with state purchased health care, RCW 42.56.270(11), and submissions to the Department of Ecology in connection with electronic product recycling, RCW 42.56.270(13). Other exemptions include account numbers supplied to an agency, RCW 42.56.230(4), financial and commercial information submitted to the state in connection with certain railroad contracts, RCW 42.56.480(1), private vocational schools, RCW 42.56.320(1), timeshare condominiums, RCW 42.56.340, drug manufacturers’ samples, RCW 42.56.360, organic food products, RCW 42.56.380(1), and commercial fertilizer, RCW 42.56.380(2).
In addition, lists of individuals sought merely for commercial purposes may be withheld. RCW 42.56.070(9).COMPARE
F. Contracts, proposals and bids
Information relating to ferry and highway construction, and railroad and export services bids may be withheld, although summaries of railroad contracts are open. RCW 42.56.270.COMPARE
G. Collective bargaining records
There is no specific exemption for collective bargaining materials.COMPARE
H. Economic development records
The Public Records Act exempts from disclosure financial and commercial information supplied in applications for economic development loans or program services provided by any local agency. RCW 42.56.270(4). Also exempt is certain financial and proprietary information submitted to the Department of Community, Trade, and Economic Development. RCW 42.56.270(12).COMPARE
I. Election Records
Voter poll books are to be made available under RCW 29A.08.720, but they cannot be used for commercial, nonpolitical purposes. Maps of precinct boundaries are to be made available under RCW 29A.16.050(7). The voter’s name, gender, voting records, date of registration and registration number are available for inspection and copying from voter registration cards, RCW 29A.08.710(2), though the identity of the office at which an individual registered to vote is not. RCW 29A.08.720. Information from absentee ballot applications is available under RCW 29A.40.130.
The Washington Secretary of State has found that referendum and initiative petitions are subject to disclosure under the Public Records Act, a practice that was generally upheld against a First Amendment challenge in Doe v. Reed, 130 S. Ct. 3348 (2010).
Campaign financing disclosure is required under RCW 42.17.030-.135. Lobbyists must register with the Public Disclosure Commission and make certain reports available under RCW 42.17.150-.230. Public officials must disclose their financial affairs under RCW 42.17.240-.241. Political advertising must be disclosed under RCW 42.17.510-.550. County auditor or county elections officer reports of primaries and elections are to be disclosed under RCW 29A.04.225 and 42.17.375.
County auditor or county elections officer reports of primaries and elections are to be disclosed under RCW 29A.04.225 and 42.17.375COMPARE
J. Emergency Medical Services records
No specific statute or case law speaks to this topic; such records likely are subject to the exemption for health care information, making them exempt except for certain directory information. RCW 42.56.360(2).COMPARE
K. Gun permits
License applications for concealed pistols are exempt from public disclosure. RCW 42.56.240(4).COMPARE
L. Homeland security and anti-terrorism measures
Portions of records assembled, prepared or maintained to prevent or respond to criminal terrorist acts and specific and unique vulnerability assessments are exempt from disclosure. RCW 42.56.420(1). Also, records obtained as a result of national security briefings with state and local government are not subject to disclosure when they are not subject to disclosure under federal law. Id.; see also Nw. Gas Ass’n v. Wash. Utils. & Transp. Comm’n, 141 Wn. App. 98, 168 P.3d 443 (2007). Other information regarding security within jails, schools, communications networks, and transportation systems may be exempt. RCW 42.56.420(2)-(6).COMPARE
M. Hospital reports
Records of the Public Hospital Commission are open to the public. RCW 70.44.050 (2000). A patient of a public hospital cannot be denied access to his or her own medical records. Oliver v. Harborview Med. Ctr., 94 Wn.2d 559, 618 P.2d 76 (1980).COMPARE
N. Personnel records
Information in files maintained for public officials and employees may be withheld “to the extent that disclosure would violate their right to privacy.” RCW 42.56.230(2). The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050.COMPARE
1. Salary
Public employee salary information is generally subject to disclosure, although individual employee deductions may be protected by a right to privacy. 1973 Op. Atty. Gen. No. 4. Employee identification numbers are exempt, but names must be released. See Tacoma Pub. Library v. Woessner, 90 Wn. App. 357, 951 P.2d 357 (1998).COMPARE
2. Disciplinary records
Release of records related to teacher certification revocations, particularly as they pertain to teachers’ sexual misconduct with students, does not violate the teachers’ right to privacy. Brouillet v. Cowles Publ’g Co., 114 Wn.2d 788, 791 P.2d 526 (1990). However, disclosure of the identity of a teacher accused of sexual misconduct violates the teacher’s right to privacy under the statute if the allegation is not substantiated. Bellevue John Does 1-11 v. Bellevue Sch. Dist. #405, 164 Wn.2d 199, 189 P.3d 139 (2008). Disclosure of the mere fact that a public employer is investigating a public employee, or that the employee is on administrative leave, does not violate the employee’s right to privacy. Predisik v. Spokane Sch. Dist. No. 81, 182 Wash.2d 896, 346 P.3d 737 (2015).
Disclosure of employee performance evaluations, which do not discuss any specific instances of misconduct or the performance of public duties, is presumptively highly offensive to a reasonable person and not of legitimate public concern, and thus violative of the employee’s privacy rights and exempt. Dawson v. Daly, 120 Wn.2d 782, 797, 845 P.2d 995 (1993). Beltran v. DSHS, 98 Wn. App. 245, 989 P.2d 604 (1999). However, evaluations of high level employees, such as city manager, have more significant public interest and may not be exempt under Dawson. See Spokane Research v. City of Spokane, 99 Wn. App. 452, 994 P.2d 267 (2000). A discharged school employee can obtain performance evaluations of other employees; however, the names of coworkers will be redacted unless there is a specific showing that the right to privacy should not apply. Ollie v. Highland Sch. Dist., 50 Wn. App. 639, 749 P.2d 757 (1988).COMPARE
3. Applications
Applications for public employment are exempt from disclosure. RCW 42.56.250(2).COMPARE
The residential addresses, telephone numbers, wireless numbers, personal email addresses, social security numbers, and emergency contact information of employees or volunteers of a public agency are exempt from disclosure. RCW 42.56.250(3).
The Washington Supreme Court has held that the state constitutional right of privacy does not apply to prevent disclosure of public records containing public employees’ dates of birth in connection with their full name. Wash. Pub. Emps. Ass’n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 450 P.3d 601 (2019).COMPARE
5. Expense reports
There is no specific authority addressing disclosure of expense reports under the PRA.COMPARE
6. Evaluations/performance reviews
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7. Complaints filed against employees
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8. Other
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O. Police records
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1. Accident reports
Reports filled out by those involved in the accident are normally not available as public records. RCW 46.52.080; Guillen v. Pierce Cnty., 144 Wn.2d 696, 31 P.3d 628 (2001). Accident reports filled out by police officers are public records and are generally subject to disclosure, at least once the investigation is complete.COMPARE
2. Police blotter
Police blotters, jail registers and incident reports are generally available prior to case closure. However, the Public Records Act permits withholding of law enforcement records if nondisclosure “is essential to effective law enforcement or for the protection of any person’s right to privacy.” RCW 42.56.240(1). The Washington Criminal Records Privacy Act (“CRPA”) prevents disclosure of certain criminal records, but does not apply to “[o]riginal records of entry maintained by criminal justice agencies” if the records are “compiled and maintained chronologically and are accessible only on a chronological basis.” RCW 10.97.030(1)(b). Thus, most information in chronological incident reports and blotters is public under both the CRPA and the Public Records Act, but the requester would have to know the date of the incident to locate the document.
The CRPA provides that records of convictions, other formal dispositions adverse to the subject and records of those currently in the criminal justice system (including those on parole) “may be disseminated without restriction.” RCW 10.97.050. Records on charges that have not resulted in conviction or other adverse disposition and for which formal proceedings are complete are closed to the public. Id.COMPARE
3. 911 tapes
911 tapes are available to the extent they are not covered by the investigative records exemption. See RCW 42.56. 240(1).COMPARE
4. Investigatory records
Specific investigative records are exempt if nondisclosure is essential to law enforcement or to protect a person’s right to privacy. RCW 42.56.240(1). The exemption covers only ongoing investigations, Ashley v. Pub. Disclosure Comm’n, 16 Wn. App. 830, 560 P.2d 1156, review denied, 89 Wn.2d 1010 (1977), and once the investigation is complete, the records are open. Hearst, 90 Wn.2d 123. Reports generated as part of routine administrative procedure, not as the result of a specific complaint or allegation of misconduct, are not “investigative reports.” Cowles Publ’g Co. v. City of Spokane, 69 Wn. App. 678, 683, 849 P.2d 1271 (noting that police reports regarding contact by K-9 dogs with citizen, generated as matter of course, are not investigative records), review denied, 122 Wn.2d 1013, 863 P.2d 73 (1993). Reports which could trigger an investigation and imposition of sanctions if warranted, but which are not themselves used for “law enforcement,” are not exempt. Id. at 684.
Investigative records related to pending criminal matters are presumptively subject to disclosure once a suspect has been arrested and referred to the prosecutor for a charging decision. Seattle Times Co. v. Serko, 170 Wn.2d 581, 243 P.3d 919 (2010); Cowles Publ’g Co. v. Spokane Police Dep’t, 139 Wn.2d 472, 987 P.2d 620 (1999). The state supreme court at one point created a categorical exemption for “open and active” police investigation files in which disclosure would jeopardize the ability to solve the case. Newman v. King Cnty., 133 Wn.2d 565, 947 P.2d 712 (1997). The court later clarified that the categorical exemption only exists for “information contained in an open, active police investigation file.” Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998) (refusing to extend a categorical exemption to work product materials under RCW 42.56.290). In Cowles and again in Serko, the court further clarified that the concept of categorical exemption did not apply once the case was referred to the prosecutor’s office, even if the files remained technically open. See also Sargent v. Seattle Police Dep’t, 179 Wn.2d 376, 314 P.3d 1093 (2013).
The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050; Hearst, 90 Wn.2d 123. In a torturous opinion, a Washington court held that whether statements in public records are “true” bears on whether the records are of legitimate concern to the public. City of Tacoma v. Tacoma News, Inc., 65 Wn. App. 140, 827 P.2d 1094, review denied, 119 Wn.2d 1020, 838 P.2d 692 (1992) (ruling that police records of investigation based on unsubstantiated allegation of child abuse against political candidate were not of legitimate public concern). But see Hudgens v. City of Renton, 49 Wn. App. 842, 746 P.2d 320 (1987) (holding arrest report, citation, and patrol report must be disclosed despite acquittal), review denied, 110 Wn.2d 1014 (1988). In Bellevue John Does 1-11 v. Bellevue School District #405, 164 Wn.2d 199, 189 P.3d 139 (2008), the Washington Supreme Court held that the identities of teachers accused of sexual misconduct are not subject to disclosure in cases where the allegations were not substantiated.
Police body worn camera recordings are subject to disclosure except to the extent necessary to protect a person’s “right to privacy,” under a modified version of the privacy test discussed above. Certain types of recordings are presumed to be “highly offensive,” including depictions showing the inside of medical facilities and residences, intimate images, minors and the body of a deceased person. RCW 42.56.240(14). Public records requests for bodycam footage must also specify a particular individual involved in an incident, a specific officer, or the incident’s time and location. Id.
Criminal records on charges that have not resulted in conviction or other adverse disposition and for which formal proceedings are over are closed to the public. RCW 10.97.050; id. 10.97.030(8). Records of internal police investigations may be exempt from disclosure, to the extent nondisclosure is “essential to effective law enforcement or for the protection of any person’s right to privacy,” but these records are not categorically exempt (except, as with other investigative records, in the “narrow set of circumstances” in which “police have not yet referred the matter to a prosecutor for a charging decision and revelation to the defendant”). Sargent v. Seattle Police Dep’t, 179 Wn.2d 376, 386–89, 392, 314 P.3d 1093, 1097–1100 (2013). An agency seeking to withhold internal police investigation records must “prove that specific portions of the internal file are essential to effective law enforcement.” Id. at 394, 1101. Further, not all law enforcement internal disciplinary investigations are considered investigative records. For example, although a prison is recognized as a law enforcement agency, discipline records relating to prison medical staff are not investigative records. Prison Legal News, Inc. v. Dep’t of Corr., 154 Wn.2d 628, 640, 115 P.3d 316 (2005).
Once the special investigation is complete, the records are open. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978).COMPARE
5. Arrest records
The Criminal Records Privacy Act restricts access to pre-conviction and non-conviction records generally but not post-conviction records. Records of entry are accessible on a chronological basis, and records of those currently in the criminal justice system are not exempt. RCW 10.97.COMPARE
6. Compilations of criminal histories
The CRPA allows access to records of convictions and records of those currently in the criminal justice system; however, records on charges that have not resulted in conviction or other adverse disposition and for which formal proceedings are over are closed to the public. RCW 10.97.050.COMPARE
7. Victims
The identity of witnesses, victims and people who file criminal or quasi-criminal complaints with agencies other than the Public Disclosure Commission is exempt if disclosure would endanger a person’s life, property or physical safety, or if the complainant indicates at the time of filing the complaint that the complainant desires it to be confidential. RCW 42.56.240(2).
The CRPA restricts access to pre-conviction and nonconviction records generally but not post-conviction records. Records of entry are accessible on a chronological basis, and records of those currently in the criminal justice system are not exempt. RCW 10.97.
Coroner records that identify the deceased may be withheld for 48 hours or until the next of kin is notified, although the official may exercise discretion to release the records earlier to aid in identifying the deceased. RCW 68.50.300.COMPARE
8. Confessions
There are no specific restrictions on access to confessions unless they fall within the investigative records exemption under the Public Records Act, RCW 42.56.240(1), or the CRPA, RCW 10.97.050.COMPARE
May be exempt pursuant to the Public Records Act’s investigative record exemption, RCW 42.56.240(1).COMPARE
10. Police techniques
Investigative records that disclose police techniques may be withheld if nondisclosure is necessary for effective law enforcement. RCW 42.56.240(1). The state Supreme Court has held that records of internal police investigations are public, but the names of complaining persons and law enforcement officers who are the subject of complaints may be withheld. Cowles Publ’g Co. v. Wash. State Patrol, 109 Wn.2d 712, 748 P.2d 597 (1988) (finding, on the facts of the case, that nondisclosure is necessary for effective law enforcement).COMPARE
11. Mugshots
Mugshots are exempt from disclosure. Cowles Publ’g Co. v. Spokane Police Dep’t, 139 Wn.2d 472, 987 P.2d 620 (1999).COMPARE
12. Sex offender records
Identifying information submitted to the statewide unified sex offender notification and registration program for the purpose of receiving notification regarding a registered sex offender is exempt from disclosure. RCW 42.56.240(8).COMPARE
13. Emergency medical services records
No specific statute or case law. Likely subject to the exemption for health care information, which is exempt except for certain directory information. RCW 42.56.360(2).COMPARE
14. Police video (e.g, body camera footage, dashcam videos)
Police body-worn camera recordings are subject to disclosure except to the extent necessary to protect a person’s “right to privacy,” under a modified version of the privacy test discussed above. Certain types of recordings are presumed to be “highly offensive,” including depictions showing the inside of medical facilities and residences, intimate images, minors and the body of a deceased person. RCW 42.56.240(14)(a). Public records requests for bodycam footage must also specify a particular individual involved in an incident, a specific officer, or the incident’s time and location. RCW 42.56.240(14)(d).Furthermore, someone “directly involved in an incident recorded by the requested body worn camera recording” or their attorney, “has the right to obtain the … recording,” subject to exemptions. RCW 42.56.240(14)(e). Such individuals may not be charged for “any redaction” or other obscuring required before release of the recording. Id. COMPARE
15. Biometric data (e.g., fingerprints)
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16. Arrest/search warrants and supporting affidavits
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17. Physical evidence
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P. Prison, parole and probation reports
Prison, parole and probation reports are generally open. The Criminal Records Privacy Act restricts access to pre-conviction and non-conviction records generally but not post-conviction records. Records of entry are accessible on a chronological basis, and records of those currently in the criminal justice system are not exempt. RCW 10.97.COMPARE
Q. Professional licensing records
Licensing test questions and other examination material are exempt from disclosure under RCW 42.56.250(1). Professional growth plans in educator license renewals are exempt under RCW 42.56.250(3). Statutes outside the Public Records Act may require confidentiality of other specific professional licensing records, and would operate as “other statute” exemptions under the PRA.COMPARE
R. Public utility records
Public utility records are generally available. See In Re Rosier, 105 Wn.2d 606, 717 P.2d 1353 (1986); 1983 Op. Atty. Gen. No. 9. However, residential addresses and telephone numbers of customers of a public utility may be withheld from public disclosure. RCW 42.56. 330(2). Also, the state Supreme Court has found a constitutional privacy interest in electric usage records, thus allowing disclosure by a public utility district only under authority of law. Matter of Maxfield, 133 Wn.2d 332, 344, 945 P.2d 196 (1997); see also RCW 42.17.314 (2000).COMPARE
S. Real estate appraisals, negotiations
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1. Appraisals
Real estate appraisals made in connection with the purchase or sale of property are exempt from disclosure until the earlier of (1) three years from the date of the appraisal or (2) consummation or abandonment of the transaction. RCW 42.56.260.COMPARE
2. Negotiations
No specific authority. See section on Appraisals.COMPARE
3. Transactions
No specific authority. See section on Appraisals.COMPARE
4. Deeds, liens, foreclosures, title history
No specific authority. See section on Appraisals.COMPARE
5. Zoning records
No specific authority.COMPARE
T. School and university records
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1. Athletic records
There are no express restrictions and no case law concerning access to athletic records. Presumably, such records are available subject to privacy-based exemptions for student records. RCW 42.56.230(1).COMPARE
2. Trustee records
There are no special exemptions for trustee records. The only exemptions that would apply are those related to specific types of records that might be kept at schools and universities, referenced in the “Athletic records” section above. Also, “first class” public school districts — districts with a student enrollment in their public schools of 2,000 pupils or more — must make administrative records available for public inspection under RCW 28A.330.070.COMPARE
3. Student records
The Public Records Act contains an exemption for personal information “in any files maintained for students in public schools.” RCW 42.56.230(1). The exemption is narrow, and limited to information maintained in the collection of individual student files that the school necessarily maintains for the student. Lindeman v. Kelso Sch. Dist., 162 Wn.2d 196, 172 P.3d 329 (2007) (ruling that security video was not subject to the exemption). Federal law prohibits release of personally identifiable information, other than directory information, from the education records of a student absent written consent from a parent of a student or the eligible student. 20 U.S.C.A. § 1232g.COMPARE
4. School foundation/fundraising/donor records
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5. Research material or publications
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6. Other
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U. State guard records
The Washington State Guard is subject to the Public Records Act in the same manner as other state agencies. See Ch. 323-10 WAC.COMPARE
V. Tax records
Tax returns, and information that would result in unfair competitive disadvantage to the taxpayer or violate the taxpayer’s right to privacy, are generally exempt. RCW 42.56.230(4). The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050; Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). Credit/debit card numbers and other financial account numbers are also exempt. RCW 42.56.230(4), (5). Personal information contained in documents used to apply for a driver’s license or identicard is exempt under RCW 42.56.230(6).COMPARE
W. Vital Statistics
Access to birth, death and marriage certificates changed significantly as of January 1, 2021. These documents are no longer generally accessible. Instead, only the subject of the record or those with certain qualifying relationships can obtain the certificates. The public will have access to “short form” death certificates that do not contain cause or manner of death information. Vital statistics may be made available for research purposes only upon entry of a data sharing agreement with the Department of Health. See generally RCW 42.56.365; RCW 70.58A.520.COMPARE
1. Birth certificates
See Vital statistics section above.COMPARE
2. Marriage and divorce
See Vital statistics section above.COMPARE
3. Death certificates
See Vital statistics section above.COMPARE
4. Infectious disease and health epidemics
While the Public Records Act contains numerous exemptions related to personal health care information, no specific provision governs access to statistics regarding epidemics. The state Department of Health gathers and periodically reports on incidents of certain diseases. See WAC 246-100; id. 246-101.COMPARE
IV. Procedure for obtaining records
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A. How to start
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1. Who receives a request?
The Public Records Act requires each agency to publish the procedures by which requests for public records are to be made. RCW 42.56.040. Many agencies provide information on their websites regarding how to make records requests or how to contact the applicable public records officers. A requesting party is not required to follow the agency procedure, but usually it is advisable to do so.COMPARE
2. Does the law cover oral requests?
Yes; on routine or simple matters, many agencies will make records available without a written request. Usually, however, a request should be made in writing to establish a clear record of the request.COMPARE
3. Required contents of a written request
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Washington law defines “public record” broadly to include electronic formats. RCW 42.56.010. There is no provision in the Act permitting agencies to limit the format in which public records may be examined or copied. Consequently, the requester can choose any available format for receiving the records. Although the PRA does not expressly require an agency to provide unredacted e-mails in an electronic format, an agency must do so where reasonable and feasible under the PRA’s “fullest assistance” provision (RCW 42.56.100). Mechling v. Monroe, 152 Wn. App. 830, 222 P.3d 808 (2009).COMPARE
5. Availability of expedited processing
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B. How long to wait
Promptness. The Public Records Act requires agencies to make a prompt response to requests for public records. RCW 42.56.520. “Promptness” means as soon as practicable, but, in any event, no longer than five days unless the agency can establish that it is impossible to meet the five-day deadline. Id. The agency can meet its five-day obligation simply by acknowledging the request and giving a reasonable estimate for how long it will take to respond.
Granting Disclosure. An agency’s response to a request for records cannot (with limited exceptions) be based on the requester’s identity or purpose. RCW 42.56.080. If the agency grants a request, it is to make the records available for inspection and copying during the customary office hours of the agency. RCW 42.56.090. The agency is also required to make agency facilities available for copying to the extent it would not disrupt agency operations. RCW 42.56.080. A public agency or official acting in good faith to comply with the Public Records Act may not be held liable for any loss or damage resulting from the release of a public record. RCW 42.56.060.
Explanation of Nondisclosure. The agency must explain the basis for its redaction or withholding of any record or portion of a record. RCW 42.56.070. The agency must identify the specific exemption authorizing withholding of the record, or part of the record, and briefly explain how the exemption applies to the record withheld. RCW 42.56.210(3). Furthermore, the agency must inform the requester of the fact that it has withheld records, and it must identify such records, or portions of records, with particularity. Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 270-71, 884 P.2d 592 (1994), partial reconsideration denied (1995) (“PAWS”).
Delay. Courts have recognized that failure to respond in a timely manner is, in essence, a denial. Agencies that are slow in responding to requests should also be reminded that the court has the discretion to award penalties in an amount up to $100 per day for each day that the requester is denied the right to inspect or copy the records. RCW 42.56.550(4). Also, a requester may challenge in court an agency’s estimate of the time it will take to respond to a request. RCW 42.56.550(2).COMPARE
1. Statutory, regulatory or court-set time limits for agency response
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3. Is delay recognized as a denial for appeal purposes?
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4. Any other recourse to encourage a response
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C. Administrative appeal
Requesters may ask the agency to review any denial of a records request. RCW 42.56.520(4). This administrative appeal is not required, but if the requester does take this step, the agency denial is deemed final (meaning the requester can file a lawsuit) within two days. Id. The PRA does not permit agencies to mandate that an administrative appeal process be exhausted before the requester may file a lawsuit; regulations purporting to impose such requirements are invalid. Kilduff v. San Juan Cnty., 194 Wn.2d 859, 453 P.3d 719 (2019).
The Public Records Act allows any requester whose public disclosure request has been denied to seek a written opinion from the Attorney General as to whether the record is exempt. RCW 42.56.530. The Attorney General’s determination of whether the records at issue are exempt, though persuasive, is not binding on the state agency or on the requester. Other informal avenues that have been successful are approaches to the attorney representing the agency. Often these attorneys are independent of the agency and, therefore, are willing to make an independent assessment of the legal situation.COMPARE
1. Time limit to file an appeal
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2. To whom is an appeal directed?
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3. Fee issues
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4. Contents of appeal
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5. Waiting for a response
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6. Subsequent remedies
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D. Additional dispute resolution procedures
The Public Records Act is generally enforced through private litigation. Any person who has been refused to allow inspection or copying of public records may demand judicial review through a civil lawsuit. RCW 42.56.550. Likewise, any person who believes that an agency has not provided a reasonable estimate of time that the agency requires to respond to a public records request may seek judicial review. Id. Alternatively, if a state agency denies a person an opportunity to inspect or copy a public record, the individual may request the attorney general’s office to review the matter and provide a written opinion. RCW 42.56.530. Such opinions are not binding on the agency, but may be persuasive.
An agency, or a third party named in or referred to in a record, is entitled to seek a court order enjoining the inspection of a public record. RCW 42.56.540; Dawson v. Daly, 120 Wn.2d 782, 845 P.2d 995 (1993). To obtain such an order, the agency or third party must establish not only that a specific exemption applies, but also that disclosure (1) clearly would not be in the public interest, and (2) would substantially and irreparably damage a person or a vital government interest. RCW 42.56.540; Lyft, Inc. v. City of Seattle, 190 Wn.2d 769, 773, 418 P.3d 102, 104 (2018).COMPARE
1. Attorney General
If a state agency denies a person an opportunity to inspect or copy a public record, the individual may request the attorney general’s office to review the matter and provide a written opinion. RCW 42.56.530. Such opinions are not binding on an agency or a court but may be persuasive.COMPARE
2. Ombudsperson
There is no ombudsperson provision in the Public Records Act. The Washington Attorney General’s Office has an “open government ombudsman,” who is available to consult on and assist with public records and open meetings issues. http://www.atg.wa.gov/OpenGovernment/Ombudsman.aspx.COMPARE
3. Other
There is no commission or agency that enforces the Public Records Act. The state Public Disclosure Commission only enforces the campaign finance disclosure aspects of the Public Disclosure Act. RCW 42.17.350, .360, .390.COMPARE
E. Court action
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1. Who may sue?
An action may be brought by a requester, by the agency, or by any person “named in the record or to whom the record specifically pertains.” RCW 42.56.540; id. 42.56.550.COMPARE
2. Priority
Such matters are not given any priority on the court calendar by statute. As a practical matter, most courts will hear public records matters on short notice, provided no jury is requested.COMPARE
3. Pro se
Pro se actions are difficult. They require not only familiarity with rules concerning filing and serving a lawsuit but scheduling a hearing as well. More importantly, a pro se litigant will have difficulty with the substantive argument because the law has become complex and agency attorneys have become very sophisticated in litigating public disclosure cases.COMPARE
4. Issues the court will address
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a. Denial
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b. Fees for records
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c. Delays
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d. Patterns for future access (declaratory judgment)
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Not specified. The usual rules for civil litigation apply.COMPARE
6. Time limit for filing suit
Actions under the Public Records Act must be filed within one year of the agency’s claim of exemption, or the last production of a record on a partial or installment basis. RCW 42.56.550. The limitations period usually runs from the agency’s final, definitive response to a records request, but case law recognizes the possibility that the period can be extended (or “equitably tolled”) if the agency silently withholds responsive records. See Belenski v. Jefferson Cnty., 186 Wn.2d 452, 378 P.3d 176 (2016).COMPARE
7. What court?
The Public Records Act’s venue provision states that actions are to be brought in the superior court in the county in which the requested record is maintained. RCW 42.56.550. If the agency being sued is a county, the suit may be brought in the superior court in a neighboring county. RCW 36.01.050.COMPARE
8. Burden of proof
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9. Judicial remedies available
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10. Litigation expenses
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a. Attorney fees
A requester who prevails against an agency that has denied a record must be awarded their costs, including reasonable attorneys’ fees. RCW 42.56.550(4).COMPARE
b. Court and litigation costs
A requester who prevails against an agency that has denied a record must be awarded their costs, including reasonable attorneys’ fees. RCW 42.56.505(4).COMPARE
11. Fines
A requester who prevails against an agency that has denied a record may also receive a civil penalty in an amount not to exceed $100 per day for each day that the requester was denied the right to inspect or copy the public record. RCW 42.56.550(4). The factors courts apply in determining the amount of such awards are set out in Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010).COMPARE
12. Other penalties
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13. Settlement, pros and cons
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F. Appealing initial court decisions
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1. Appeal routes
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2. Time limits for filing appeals
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G. Addressing government suits against disclosure
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Open Meetings
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I. Statute – basic application
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A. Who may attend?
“[A]ll persons” are generally permitted to attend any meeting of the governing body of a public agency. RCW 42.30.030. In the event that there is a disturbance and individuals are removed for disrupting the meeting, “[r]epresentatives of the press or other news media, except those participating in the disturbance,” will be allowed to remain in attendance. RCW 42.30.050. No one can be required, as a condition of attendance at a public meeting, to register his name or other information, to complete a questionnaire, or otherwise fulfill any condition precedent to attendance. RCW 42.30.040. Though a governing body may set reasonable rules of conduct so the meetings can be conducted in an orderly fashion, access cannot be limited and cameras and tape recorders cannot be prohibited unless they are actually disruptive. RCW 42.30.050; Op. Atty. Gen. 1998, No. 15.COMPARE
B. What governments are subject to the law?
OPMA applies to any public agency at the state, county, municipal or local level, and any subagency created by legislation, including planning commissions, library and park boards and commissions. RCW 42.30.020(1).COMPARE
1. State
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2. County
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3. Local or municipal
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C. What bodies are covered by the law?
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1. Executive branch agencies
OPMA only applies to meetings of the “governing body” of an agency or subagency. “Governing body” refers to multi-member boards, commissions, committees, councils, or any policy or rulemaking body. RCW 42.30.020(2). A committee of any governing body is also covered by OPMA whenever it acts on behalf of the government body, conducts hearings, or takes testimony or public comment. Id.COMPARE
a. What officials are covered?
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b. Are certain executive functions covered?
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c. Are only certain agencies subject to the act?
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2. Legislative bodies
The OPMA does not apply to the state legislature. RCW 42.30.020(1)(a). However, it is an open question as to whether the Act applies to caucuses and committees of the legislature. Thus far, the issue has been avoided because the legislative caucuses and committees have adopted open meeting rules that are as broad or more broad than OPMA.COMPARE
3. Courts
Courts are not covered by the Act. RCW 42.30.020(1)(a).COMPARE
4. Nongovernmental bodies receiving public funds or benefits
Private entities have been held to be “agencies” subject to the OPMA and Public Records Act if they are the “functional equivalent” of a public agency under a four-part test that looks to (1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government. See Fortgang v. Woodland Park Zoo, 187 Wn.2d 509, 387 P.3d 690 (2017); Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185, 181 P.3d 881 (2008); Telford v. Thurston Cnty. Bd. of Comm’rs, 95 Wn. App. 149, 974 P.2d 886 (1999).COMPARE
5. Nongovernmental groups whose members include governmental officials
The Act does not apply to nongovernmental groups except in specific instances, i.e., a policy group whose membership includes representatives of publicly owned utilities. RCW 42.30.020(1)(d). However, if a majority of the governing body of a particular agency meets with anyone else concerning agency business, then the meeting is considered a meeting of the governing body and is subject to the Act.COMPARE
6. Multi-state or regional bodies
Other than the policy group of publicly owned utilities mentioned above, there is no specific coverage for multistate or regional bodies. A federal court has held that meetings of interstate advisory committees are not subject to the Act where the governing body of any particular state agency did not attend nor did the multistate body have any final authority. United States v. State of Oregon, 699 F. Supp. 1456 (D. Or. 1988), aff’d, 913 F.2d 576 (9th Cir. 1990), cert. denied, 501 U.S. 1250 (1991).COMPARE
7. Advisory boards and commissions, quasi-governmental entities
If an advisory board or commission is created by or pursuant to statute, ordinance or other legislative act or if such group in fact sets policy for an agency, then these boards and commissions are covered by the Act. RCW 42.30.020(1). The Act does not apply to meetings of an interstate advisory body. Salmon for All v. State of Wash., 118 Wn.2d 270, 821 P.2d 1211 (1992).COMPARE
8. Other bodies to which governmental or public functions are delegated
A task force formed by a city’s planning advisory board to analyze a particular issue, take testimony and public comments, conduct hearings, and otherwise act on behalf of the board and city council is subject to the OPMA. Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001).
Meetings of a “critical areas ordinance team,” consisting of three of six members of a county council as well as county staff and consultants, were not subject to the OPMA because the body did not contain a majority of the council and did not act on the council’s behalf. Citizens Alliance for Property Rights Legal Fund v. San Juan Cnty., 184 Wn.2d 428, 359 P.3d 753 (2015).COMPARE
9. Appointed as well as elected bodies
There is no distinction between an elected and an appointed body.COMPARE
D. What constitutes a meeting subject to the law
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1. Number that must be present
The Act states that all meetings of the “governing body” must be open to the public. The governing body is defined as any multimember board, commission, committee, council, or other policy or rulemaking body. RCW 42.30.020(2). The meeting need not take place in a formal setting.
For example, in 1998, the Washington State Auditor found that Algona Economic Development Corporation Public Development Authority violated the OPMA when it held dinner meetings on the Spirit of Washington Dinner Train and on cruises in the Puget Sound. In 1999, the Auditor held that some members of the Monroe City Council violated the OPMA when they met after public meetings at a local restaurant. In both cases, the members of the governing body discussed business in addition to socializing. The business discussions made the gatherings meetings held in violation of the Act. Thus, any time members of a governing body discuss official business, the public must have access. Where a quorum of the city council takes “action” (as defined in the statute) at a standing committee meeting, a city council meeting has occurred. Op. Atty. Gen. 2010, No. 9, 2010 WL 4963127.COMPARE
a. Must a minimum number be present to constitute a “meeting”?
If a majority of the governing body or a quorum are engaged in deliberations or other action, the meeting is subject to the OPMA. Eugster v. City of Spokane, 128 Wn. App. 1, 114 P.3d 1200 (2005).COMPARE
b. What effect does absence of a quorum have?
Where a quorum of the city council takes “action” (as defined in the statute) at a standing committee meeting, a meeting has occurred. Op. Atty. Gen. 2010, No. 9, 2010 WL 4963127. Absent a quorum, the agency may take the position that no meeting can take place, but “serial meetings” in which the governing body seeks to avoid the OPMA by holding multiple meetings comprised of less than a quorum are likely impermissible.COMPARE
2. Nature of business subject to the law
“Meeting” means a meeting at which “action” is taken. RCW 42.30.020(4). “Action” includes discussion, public testimony, review, evaluation, and other deliberation, as well as “final” action. RCW 42.30.020(3). Final action is a collective positive or negative decision by formal motion or informal proposal or vote by the majority of members of the governing body. RCW 42.30.020(3); Miller v. City of Tacoma, 138 Wn.2d 318, 331, 979 P.2d 1129 (1999). In other words, there is a meeting whenever a governing body discusses agency business — even if no decisions are made.COMPARE
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b. Deliberation toward decisions
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3. Electronic meetings
The Act says that “all” meetings of the governing body of a public agency shall be open and public. It does not require that such meetings be conducted in person. Presumably, meetings by conference call or e-mail are not prohibited so long as there is a speaker phone or video display terminal for the public who may wish to observe and/or listen to the proceedings. With the proper scheduling of meeting and agenda, such procedures likely would meet the requirements of the Act.
A 2017 attorney general opinion concluded that governing bodies of public agencies may conduct their meetings exclusively by telephone conference call, as long as the call is sufficiently open to the public. AGO 2017 No. 4 (Mar. 21, 2017). The attorney general suggested such meetings would be permissible if there were:
[O]ne or more specific locations [that] can be designated as the meeting place; notification of the meeting place(s) and time can be provided in the manner outlined in RCW 42.30.075; the agenda can be posted online if required by RCW 42.30.077; and a speaker phone can be provided at the designated meeting place(s) to enable those attending to hear the public discussions and to provide testimony.
Id. The attorney general concluded that a challenge to such a meeting under the OPMA would be “unlikely” to succeed.COMPARE
a. Conference calls and video/Internet conferencing
In 1996, the State Auditor held that two members of a three-member board violated the OPMA when one board member called another member to discuss agency business. The calls lasted from one minute to up to one hour. In 1996, the Auditor also found that a board that operates a public ambulance service in Skamania County violated the Act when two members of a three-member board used a third party to exchange information between the members which ultimately became part of an agreement signed by the board.COMPARE
b. E-mail
The exchange of e-mail messages may constitute a meeting within the meaning of the Open Public Meetings Act provided a majority of the governing body is involved and the use of e-mail is not merely informational or passive receipt of e-mail. Wood v. Battleground Sch. Dist., 107 Wn. App. 550, 27 P.3d 1208 (2001).COMPARE
c. Text messages
There is no authority addressing this issue.COMPARE
d. Instant messaging
There is no authority addressing this issue.COMPARE
There is no authority addressing this issue.COMPARE
E. Categories of meetings subject to the law
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1. Regular meetings
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a. Definition
Regular meetings are “recurring meetings held in accordance with a periodic schedule declared by statute or rule.” RCW 42.30.075.COMPARE
b. Notice
OPMA does not specify any time limit for giving notice of a regular meeting. Agencies are only required to give notice in accordance with statutes or rules pertaining to that agency. By definition, “regular meeting” refers to a periodic schedule that has been established. See E.1.b(3) below.
OPMA does not specify to whom notice must be given for regular meetings. All that OPMA requires is that the governing body establish a time for holding regular meetings. RCW 42.30.070.
OPMA requires that the governing body of a public agency must adopt a regular meeting schedule “by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body.” RCW 42.30.070. State agencies must file a schedule of the time and place of regular meetings for publication with the Washington State Register on or before January of each year. Notice of any change from such meeting schedule must be published in the State Register for distribution at least 20 days prior to the rescheduled meeting date. RCW 42.30.075.
Public agencies with governing bodies must make the agenda of each regular board meeting available online no later than 24 hours before the published start time of the meeting. RCW 42.30.077. In the case of special meetings, advance notice is required. The notice must specify “the business to be transacted.” RCW 42.30.080.
There are no requirements for notice of a regular meeting beyond those described above.
If an agency fails to follow the minimal notice requirements of the OPMA, any person may commence an action for an injunction or mandamus. RCW 42.30.130. If the challenger prevails against the agency, he or she will recover his or her reasonable expenses and attorney fees in bringing the action, RCW 42.30.120(2). To prevail, the party need only establish that a violation occurred, not that the participants knowingly violated the law. See, e.g., Miller, 138 Wn.2d at 331-32 (awarding attorneys’ fees and costs despite findings that participants believed they were acting appropriately under the law. Also, any final actions taken may be declared null and void. RCW 42.30.060 (2000); Responsible Urban Growth Group v. Kent, 123 Wn.2d 376, 868 P.2d 861 (1994); Slaughter v. Snohomish Cnty. Fire Dist., 50 Wn. App. 733, 750 P.2d 656 (1988). Also, each member of the governing body who attends the meeting with knowledge that the meeting is in violation of the OPMA is personally liable for a civil penalty of $500 for the first violation, and $1,000 for subsequent violations. RCW 42.30.120(1), (2). A knowing violation can result in a recall from office. In re Recall of Pepper, 189 Wn.2d 546, 403 P.3d 839 (2017)], reconsideration denied (Dec. 4, 2017); In re Andersen, 131 Wn.2d 92, 929 P.2d 410 (1997); In re Recall of Roberts, 115 Wn.2d 551, 799 P.2d 736 (1990); Pedersen v. Moser, 99 Wn.2d 456, 662 P.2d 866 (1983); Cole v. Webster, 103 Wn.2d 280, 692 P.2d 799 (1984); Bocek v. Bailey, 81 Wn.2d 831, 505 P.2d 814 (1973). The Governor may also remove appointees confirmed by the Senate if the Governor believes such appointee has violated the OPMA. RCW 43.06.080; see also Price v. Seattle, 39 Wash. 376, 81 P. 847 (1905); State v. Johns, 139 Wash. 525, 248 P. 423 (1923) (confirming Governor’s plenary power to remove appointees believed to have committed misconduct or malfeasance).COMPARE
c. Minutes
OPMA does not have a provision regarding minutes. However, there is a separate state law which requires that minutes of regular and special meetings must be promptly recorded and open to public inspection. RCW 42.32.030. There is no definition of what is meant by “promptly.” Moreover, minutes of executive sessions are not required.
Written or taped minutes are public records and, therefore, are available under the Public Records Act. Minutes, or portions thereof, may be exempt from disclosure only if they fall within one of the exemptions to that Act.COMPARE
2. Special or emergency meetings
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a. Definition
None provided for special meetings. Emergency meetings, which may be held without notice, must involve an emergency threatening sudden, unexpected and severe physical damage to persons or property and requiring immediate action. RCW 42.30.080; Mead Sch. Dist. v. Mead Educ. Ass’n, 85 Wn.2d 140, 530 P.2d 302 (1975) (holding that an impending teacher’s strike was not such an emergency).COMPARE
b. Notice requirements
Special meetings may be called at any time by the presiding officer of the governing body so long as 24 hours advance written notice is given to each member of the governing body and to each media organization that has on file with the governing body a written request to be notified of special meetings. RCW 42.30.080; Kirk v. Pierce Cnty. Fire Protection Dist. No. 21, 95 Wn.2d 769, 630 P.2d 930 (1981). The notice must be posted on the agency’s website. RCW 42.30.080(2).
Agencies may call “emergency meetings” without notice.
An “agenda” is required in the announcement of a special emergency meeting. RCW 42.30.080, and an agency’s action must be limited to the listed agenda items. In 1999, the State Auditor held that the Bothell City Council violated the OPMA when it discussed a topic not on the published agenda for a special meeting. Washington State Auditor Schedule of Audit Findings for 1/1/99-12/31/99.
Penalties. If an agency fails to follow the minimal notice requirements of the OPMA, any person may commence an action for an injunction or mandamus. RCW 42.30.130. If the challenger prevails against the agency, he or she will recover his or her reasonable expenses and attorney fees in bringing the action, RCW 42.30.120(2). To prevail, the party need only establish that a violation occurred, not that the participants knowingly violated the law. See, e.g., Miller, 138 Wn.2d at 331-32 (awarding attorneys’ fees and costs despite findings that participants believed they were acting appropriately under the law). Also, any final actions taken may be declared null and void. RCW 42.30.060 (2000); Responsible Urban Growth Group v. Kent, 123 Wn.2d 376, 868 P.2d 861 (1994); Slaughter v. Snohomish Cnty. Fire Dist., 50 Wn. App. 733, 750 P.2d 656 (1988). Also, each member of the governing body who attends the meeting with knowledge that the meeting is in violation of the OPMA is personally liable for a civil penalty of $500 (or $1,000 after the first violation). RCW 42.30.120(1)–(2). A knowing violation can also result in a recall from office. In re Andersen, 131 Wn.2d 92, 929 P.2d 410 (1997); In re Recall of Roberts, 115 Wn.2d 551, 799 P.2d 736 (1990); Pedersen v. Moser, 99 Wn.2d 456, 662 P.2d 866 (1983); Cole v. Webster, 103 Wn.2d 280, 692 P.2d 799 (1984); Bocek v. Bailey, 81 Wn.2d 831, 505 P.2d 814 (1973). The Governor may also remove appointees confirmed by the Senate if the Governor believes such appointee has violated the OPMA. RCW 43.06.080; see also Price v. Seattle, 39 Wash. 376, 81 P. 847 (1905); State v. Johns, 139 Wash. 525, 248 P. 423 (1923) (confirming Governor’s plenary power to remove appointees believed to have committed misconduct or malfeasance).COMPARE
c. Minutes
OPMA does not have a provision regarding minutes. However, there is a separate state law that requires minutes of regular and special meetings to be promptly recorded and open to public inspection. RCW 42.32.030. There is no definition of what is meant by “promptly.” Moreover, minutes of executive sessions are not required.
Written or taped minutes are public records and, therefore, are available under the Public Records Act. Minutes, or portions thereof, may be exempt from disclosure only if they fall within one of the exemptions to that Act.COMPARE
3. Closed meetings or executive sessions
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a. Definition
The OPMA allows for closed meetings in only two circumstances: First, certain meetings may be closed because the OPMA is deemed not to apply to such meetings. RCW 42.30.140. Second, agencies are permitted, under certain circumstances, to have a closed executive session. RCW 42.30.110(1)(a)-(k). Any meeting to which OPMA does not apply or any specified circumstance in which executive sessions are permitted, may be closed to the public, including the press. RCW 42.30.110; id. 42.30.140 (2000).COMPARE
b. Notice requirements
An announcement of an executive session can take place any time; there is no specified time limit. OPMA does not require posting of notice of an executive or closed session; however, the presiding officer of the governing body must publicly announce the purpose for excluding the public from the meeting place. The governing body is only required to publicly announce to those in attendance that it is going into an executive session. RCW 42.30.110(2).
At the time a meeting is closed, the presiding officer must announce when the executive session will be concluded and, if it is not concluded at that time, the presiding officer must make a subsequent announcement as to the extension of the time. Id.
If an agency fails to follow the minimal notice requirements of the OPMA, any person may commence an action for an injunction or mandamus. RCW 42.30.130. If the challenger prevails against the agency, he or she will recover his or her reasonable expenses and attorney fees in bringing the action, RCW 42.30.120(2). To prevail, the party need only establish that a violation occurred, not that the participants knowingly violated the law. See, e.g., Miller, 138 Wn.2d at 331-32 (awarding attorneys’ fees and costs despite findings that participants believed they were acting appropriately under the law. Also, any final actions taken may be declared null and void. RCW 42.30.060 (2000); Responsible Urban Growth Group v. Kent, 123 Wn.2d 376, 868 P.2d 861 (1994); Slaughter v. Snohomish Cnty. Fire Dist., 50 Wn. App. 733, 750 P.2d 656 (1988). Also, each member of the governing body who attends the meeting with knowledge that the meeting is in violation of the OPMA is personally liable for a civil penalty of $500 (or $1,000 after the first violation). RCW 42.30.120(1)–(2). A knowing violation can also result in a recall from office. In re Andersen, 131 Wn.2d 92, 929 P.2d 410 (1997); In re Recall of Roberts, 115 Wn.2d 551, 799 P.2d 736 (1990); Pedersen v. Moser, 99 Wn.2d 456, 662 P.2d 866 (1983); Cole v. Webster, 103 Wn.2d 280, 692 P.2d 799 (1984); Bocek v. Bailey, 81 Wn.2d 831, 505 P.2d 814 (1973). The Governor may also remove appointees confirmed by the Senate if the Governor believes such appointee has violated the OPMA. RCW 43.06.080; see also Price v. Seattle, 39 Wash. 376, 81 P. 847 (1905); State v. Johns, 139 Wash. 525, 248 P. 423 (1923) (confirming Governor’s plenary power to remove appointees believed to have committed misconduct or malfeasance).COMPARE
c. Minutes
There is no requirement that minutes be taken during a closed meeting or an executive session. However, if minutes are taken, they become public records and may be exempt from disclosure only if Public Records Act exemptions apply.COMPARE
d. Requirement to meet in public before closing meeting
Although the OPMA does not expressly say so, it is clearly contemplated that a governing body will meet first in public before closing a meeting. OPMA states that before convening an executive session, the presiding officer must make a public announcement. RCW 42.30.110(2).COMPARE
e. Requirement to state statutory authority for closing meetings before closure
As stated above, the OPMA requires the presiding officer of a governing body to publicly announce the purpose for excluding the public from the meeting before going into executive session. RCW 42.30.110(2). It is generally accepted that the public announcement must specifically identify the exemption of the Act that is involved and the general subject matter of the closed session.COMPARE
f. Tape recording requirements
There is no requirement that meetings or minutes be tape recorded, although some agencies customarily do so. Such recordings are subject to the Public Records Act.COMPARE
F. Recording/broadcast of meetings
The use of cameras and other recording devices may not be prohibited unless they are actually disruptive. RCW 42.30.50; Op. Atty. Gen. 1998, No. 5. As a practical matter, broadcasting, recording and photographing are routinely allowed; however, care must be taken to avoid a secret recording that might run afoul of the state’s anti-eavesdropping statute. RCW 9.73.030.COMPARE
1. Sound recordings allowed
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2. Photographic recordings allowed
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G. Access to meeting materials, reports and agendas
As of 2014, public agencies are required to post the agendas of their governing bodies’ regular board meetings online no later than 24 hours before the published start time of the meeting. RCW 42.30.077.COMPARE
H. Are there sanctions for noncompliance?
Any action taken at meetings failing to comply with the Open Public Meetings Act is null and void. RCW 42.30.060. See Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001). Any person may commence an action either by mandamus or injunction to stop violations or prevent threatened violations of the Open Public Meetings Act. RCW 42.30.130. Individual members of the governing body who attend a meeting in violation of the Open Public Meetings Act with knowledge of the fact that the meeting is in violation of the OPMA are subject to personal liability in the amount of a $500 civil penalty (or $1,000 after the first violation). RCW 42.30.120(1), (2). Any person who prevails against a public agency for violation of the Open Public Meetings Act shall be awarded all costs, including reasonable attorneys’ fees, incurred in connection with such legal action. RCW 42.30.120(2).COMPARE
II. Exemptions and other legal limitations
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A. Exemptions in the open meetings statute
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1. Character of exemptions
The OPMA provides for closed meetings in two circumstances. First, certain meetings may be closed because the OPMA is deemed not to apply to such meetings. Second, agencies are permitted, under certain circumstances, to have a closed executive session.
The areas not covered by the Act and the executive session exemptions are all discretionary. In other words, there is no requirement that such meetings be closed. The only other exemption to the OPMA is that in the event of a public disturbance, the governing body may order the room cleared of the public and the meeting may continue; however, members of the media who were not involved in the disturbance are allowed to remain. RCW 42.30.050.COMPARE
2. Description of each exemption
Meetings may be closed in the following situations because the OPMA is deemed inapplicable, RCW 42.30.140:
a. The formal granting or denying of a license permit or certificate to engage in a business, occupation or profession, or disciplinary proceedings involving a member of a business, occupation or profession;
b. Proceeding of a quasi-judicial nature relating to named parties. A county commission’s consideration of whether to grant a permit allowing a city to extend its sewer outfall, as a matter of significant public interest, was not a “quasi-judicial matter between named parties.” Protect the Peninsula’s Future v. Clallam County, 66 Wn. App. 671, 676, 833 P.2d 406 (1992). A four-part test is employed to determine whether an agency action is quasi-judicial:
(1) Whether a court could have been charged with making the agency’s decision; (2) whether the action is one which historically has been performed by courts; (3) whether the action involves the application of existing law to past or present facts for the purpose of declaring or enforcing liability; and (4) whether the action resembles the ordinary business of courts as opposed to that of legislators or administrators.
Id.;
c. Meetings involving matters covered by the state Administrative Procedure Act (“APA”) Ch. 34.05 RCW. (The APA has its own, more limited, provisions for “public observation.” See RCW 34.05.449.) The APA does not apply to local agencies. Victoria Tower P’ship v. City of Seattle, 49 Wn. App. 755, 745 P.2d 1328 (1987);
d. Collective bargaining sessions with employee organizations, including contract negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement; and
e. Meetings or portions of meetings concerning the strategy or position to be taken by the governing body during the course of collective bargaining, professional negotiations, grievance or mediation proceedings, or involving reviewing proposals made in such negotiations or proceedings.
Executive sessions may be called in the following situations, RCW 42.30.110(1)(a)-(m):
a. To consider matters affecting national security;
b. To consider, with legal counsel available, information regarding communications network security, risk assessments and related information that if made public may increase the risk to agency security or information technology infrastructure;
c. To consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would likely increase the price;
d. To consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding the consideration would likely lower the price;
e. To review negotiations on the performance of publicly bid contracts when public knowledge would likely increase costs;
f. To consider, in the case of a commercial export trading company, financial and commercial information supplied by private persons to the export trading company;
g. To receive and evaluate complaints or charges brought against a public officer or employee, unless the officer or employee requests that the meeting be open;
h. To evaluate qualifications of an applicant for public employment or to review the performance of a public employee. Final actions and discussions of generally applied salary levels must be open to the public;
i. To evaluate the qualifications of a candidate for employment to elective office. Interviews and final actions appointing candidates to elective office must be open;
j. To discuss certain matters with legal counsel when public knowledge of the discussion is likely to result in adverse legal or financial consequences to the agency;
k. To discuss western library network prices, products, equipment and services, when public discussion would reduce the network’s competitiveness, though final actions must be taken in public;
l. To consider, in the case of the State Investment Board, financial and commercial information when the information relates to the investment of public trust or retirement funds and when public knowledge regarding the discussion would result in loss to such funds or in private loss to the providers of this information;
m. To consider proprietary or confidential non-published information related to the development, acquisition, or implementation of state purchased healthcare services;
n. To consider, in the case of the life sciences discovery fund authority, the substance of grant applications and grant awards when public knowledge regarding the discussion would reasonably be expected to result in private loss to the providers of this information;
o. To consider in the case of a health sciences and services authority, the substance of grant applications and awards when public knowledge regarding the discussion would reasonably be expected to result in private loss to the providers of this information; and
p. In the case of public hospitals, to consider information regarding staff privileges or quality improvement committees.COMPARE
B. Any other statutory requirements for closed or open meetings
Before convening an executive session, the presiding officer must publicly announce both the purpose for excluding the public and the time at which the executive session is to conclude. RCW 42.30.110(2). There is no similar requirement with respect to meetings to which the Act does not apply. Minutes are not required during closed or executive sessions; however, if such minutes are made they must be made promptly.COMPARE
C. Court mandated opening, closing
No decisions have mandated that specific future meetings be open or closed. Instead, courts have ruled that based on the facts before them closed meetings did or did not violate the Act. See, e.g., Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 395 P.3d 1031 (2017); Miller v. City of Tacoma, 138 Wn.2d 318, 979 P.2d 429 (1999) (City Council members’ informal balloting to fill commission position should have occurred in an open meeting instead of the closed executive session); Protect the Peninsula’s Future v. Clallam Cnty., 66 Wn. App. 671, 833 P.2d 406 (1992) (executive session was improper where review of shoreline permit application involved matter of substantial importance to the public); Walla Walla Union-Bulletin v. Walla Walla Cnty. Comm’n, 15 Media L. Rep. 1208 (1988) (closed commission meeting violated OPMA); Port Townsend Publ’g Co. v. Brown, 18 Wn. App. 80, 567 P.2d 664 (1977) (no violation where closed session of county commission involved Comprehensive Employment and Training Act).COMPARE
III. Meeting categories – open or closed
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A. Adjudications by administrative bodies
Adjudications by state administrative bodies are generally covered by the APA and, therefore, are not covered by the OPMA. RCW 42.30.140(3). As a general rule, the fact-finding of such bodies is open, but the deliberations are closed.COMPARE
1. Deliberations closed, but not fact-finding
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2. Only certain adjudications closed, i.e. under certain statutes
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B. Budget sessions
Budget sessions are open to the public except those portions that might be closed because they fall within one of the categories for permissible executive sessions.COMPARE
C. Business and industry relations
The only limitation is where the governing body is considering financial and commercial information pertaining to export trading companies.COMPARE
D. Federal programs
There is no limit in OPMA on public attendance at meetings to discuss federal programs.COMPARE
E. Financial data of public bodies
No limitation.COMPARE
F. Financial data, trade secrets, or proprietary data of private corporations and individuals
There is no express limitation other than on financial and commercial information pertaining to export trading companies. RCW 42.30.110(1)(e).COMPARE
G. Gifts, trusts and honorary degrees
No limitation; such discussions should be open.COMPARE
H. Grand jury testimony by public employees
Grand jury testimony is not covered by OPMA. However, such testimony is not generally open to the public. RCW 10.27.080, .090, .150.COMPARE
I. Licensing examinations
Meetings concerned with granting or denying a license are excluded from OPMA and, therefore, may be closed. See RCW 42.30.140. However, the fact-finding portion of such meetings often is open to the public.COMPARE
J. Litigation, pending litigation or other attorney-client privileges
An executive session may be held to discuss certain matters with legal counsel representing the agency when public knowledge of the discussion is likely to result in “adverse legal or financial consequence” to the agency. RCW 42.30.110(1)(i). Matters that may, for this reason, be discussed in closed session are those relating to agency enforcement actions and to present 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.COMPARE
K. Negotiations and collective bargaining of public employees
Negotiations and collective bargaining sessions, as well as grievance and contract interpretation meetings are excluded from OPMA. Also, meetings of the governing body itself to consider the strategy or position to be taken by such body during the course of collective bargaining or negotiations are not subject to any provision of the Act. See RCW 42.30.140.COMPARE
1. Any sessions regarding collective bargaining
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2. Only those between the public employees and the public body
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L. Parole board meetings, or meetings involving parole board decisions
The state Board of Prison Terms and Paroles has adopted rules stating that all Board proceedings are open to the public, unless the Board states on the record “a good cause” for denying access to observers, including members of the press.COMPARE
M. Patients, discussions on individual patients
There is no specific exemption for such meetings if they involve the governing body.COMPARE
N. Personnel matters
Personnel matters, as a rule, must be discussed in open session. However, an agency may close a meeting to receive and evaluate complaints or charges brought against a public officer or employee, to evaluate qualifications of an applicant for public employment, or to review the performance of a public employee, unless the employee requests that the meeting be open. However, final action on hiring, setting salaries, or discharging or disciplining any employee must occur in a public meeting. See RCW 42.30.110(1)(f) and (g).COMPARE
1. Interviews for public employment
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3. Dismissal, considering dismissal of public employees
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O. Real estate negotiations
An agency may close a meeting of the governing body to consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding consideration likely would increase the price. Similarly, a public agency may close a meeting of the governing body to consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding the considerations likely would lower the price. See RCW 42.30.110(1)(b) and (c).COMPARE
P. Security, national and/or state, of buildings, personnel or other
An agency may close a meeting to consider matters “affecting national security.” RCW 42.30.110(1)(a).COMPARE
Q. Students, discussions on individual students
The OPMA has no provision for closing a meeting to discuss an individual student. Moreover, meetings of a student board which is the governing body of the recognized student association of a campus of a public institution of higher education must conform to the requirements of the Act. RCW 42.30.200.COMPARE
IV. Procedure for asserting right of access
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A. When to challenge
There is no specific statutory requirement as to when a closed meeting must be challenged. Therefore, the normal statute of limitations of two years and the doctrine of laches probably apply.COMPARE
1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?
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2. When barred from attending
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3. To set aside decision
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4. For ruling on future meetings
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5. Other
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B. How to start
Although it is not required by the Act, a reporter should probably make an oral protest and urge the agency to keep a meeting open. The reporter might ask the governing body to take a vote as to whether or not to close the meeting, or to allow sufficient time for the reporter to contact an editor or lawyer to further present arguments to the governing body.
The OPMA is enforced through private civil litigation.COMPARE
1. Where to ask for ruling
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a. Administrative forum
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b. State attorney general
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c. Court
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2. Applicable time limits
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3. Contents of request for ruling
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4. How long should you wait for a response
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C. Court review of administrative decision
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1. Who may sue?
Any person may bring a suit in the local county court. RCW 42.30.120, .130.COMPARE
2. Will the court give priority to the pleading?
Such matters are not given any priority on the court calendar by statute. The usual civil rules apply.COMPARE
3. Pro se possibility, advisability
Pro se actions are difficult. They require not only familiarity with rules concerning filing and serving a lawsuit but scheduling a hearing as well. Pro se litigants must be aware that they may be liable for attorneys’ fees if they lose and the court finds that their action was frivolous. RCW 42.30.120(2).COMPARE
4. What issues will the court address?
Not specified.COMPARE
a. Open the meeting
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b. Invalidate the decision
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c. Order future meetings open
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Not specified. The usual rules of civil procedure apply.COMPARE
6. Time limit for filing suit
There is no specific statutory requirement as to when a closed meeting must be challenged. Therefore, the normal statute of limitations of two years and the doctrine of laches probably apply.COMPARE
7. What court?
Suit may be brought in the local county court. RCW 42.30.120, .130.COMPARE
8. Judicial remedies available
The court may void any final actions taken at the meeting, if the governing body failed to comply with the OPMA. The court also may enjoin prospective or future violations. However, where there is no evidence that the agency will hold another meeting in violation of the OPMA, injunctive relief is not appropriate. Protect the Peninsula’s Future v. Clallam County, 66 Wn. App. 671, 677, 833 P.2d 406 (1992).COMPARE
9. Availability of court costs and attorney’s fees
A successful litigant challenging the agency’s closure may obtain attorneys’ fees and costs. RCW 42.30.120(2).COMPARE
10. Fines
The court may assess a civil penalty of $500 against each member of the governing body of the agency who attended the meeting knowing it was in violation of the OPMA, or $1,000 for subsequent violations. RCW 42.30.120(1)(2).COMPARE
11. Other penalties
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D. Appealing initial court decisions
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1. Appeal routes
Appeal may be taken to the state Court of Appeals and, from there, to the state Supreme Court, under the usual rules of appellate procedure.COMPARE
2. Time limits for filing appeals
Thirty days.COMPARE
Interested amici can learn of open meeting issues that may be pending before the state Supreme Court by consulting published lists at the beginning of each court term. The lists, available on the court’s website, will contain the names of cases to be heard and the basic issues in those cases.
The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state’s highest court.COMPARE
The OPMA addresses the public’s right to observe, not to participate, in a public meeting. However, a member of the public shall not be required, as a condition to attend a meeting, to register his or her name and other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to attendance. RCW 42.30.040.
There is no right to participate, unless the agency has adopted rules requiring or permitting such participation.
If a meeting is interrupted by a person or a group so as to render the orderly conduct of the meeting unfeasible and order cannot be restored by the removal of individuals who are interrupting the meeting, the members of the governing body conducting the meeting may order the meeting room cleared and continue in session or may adjourn the meeting and reconvene at another location selected by a majority vote of the members. RCW 42.30.050. However, representatives of the press or other news media, except those participating in the disturbance, shall not be removed and may attend any session held after members of the public have been excluded due to disruption. Id.COMPARE
A. Is there a right to participate in public meetings?
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C. Can a public body limit comment?
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Appendix
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FILING FEE RECEIVED $260.00
