WA AGO consider new rules for public record requests as it faces PRR appeals

Meanwhile, The Center Square has ongoing appeals with the AGO’s own Public Records Office regarding its redactions of various records.

Speaking on behalf of the Daily Newspapers of Washington and the Washington State Association of Broadcasters, Rowland Thompson told AGO officials at a June 30 public hearing that there has been a “falling off on the part of governmental entities responding to our requests for records.

“We were seeing long delays in records that we had requested,” he added. “We want to make sure that there’s prompt disclosure, that there’s diligent processing, and that time estimates based on specific requests are not just part of a general backlog of requests that the agency already faces.”

The proposed new model rules are described as “best practices” and are nonbinding, intended to guide government entities responding to records requests.

Among the new guidelines are:

• “Triaging” requests based on their simplicity or complexity, with the notion that simple requests should be fulfilled within five days.
• Transferring public records contained or stored on personal devices or in personal accounts to work devices or work accounts within five business days.
• More explicit language around providing “prompt” and “timely” responses to requests.
• Guidance around notifying third parties after there’s a reasonable belief the records are exempt.
• Keeping records accessible for search and production. Updates address options for indexing (required by statute) when it would be unduly burdensome, including specifying types of records affected.
• Sending a formal closure letter when agencies stop actively working on a request.

Small town staff

Among those to raise concerns about the proposed rules was Candice Bock, government relations director for the Association of Washington Cities. She told AGO officials at the June 30 meeting that most of the state’s cities and towns have a population of 5,000 or less, which means “in those cities you have just a handful of staff and probably a city clerk that is doing triple duty. They are serving as a public records officer and many other roles, and so it is important to us that any new guidance recognizes their limited capacity.”

She added that while “these model rules help provide greater clarity to them,” officials should also consider “the impact on them when there are questions and concerns about public records.”

“Requiring or encouraging classifying requests as either simple or complex sounds straightforward, but it puts public records officers in the position of determining what’s simple, what is complex, similarly with time sensitive,” she said. “It puts them in the position of determining what is time sensitive and what is not urgent. We feel like this could really have requesters pitted against one another for the limited time and resources that are available and put a records officer in a position of trying to arbitrate over those questions, just really creating more liability.”

However, government transparency advocate Joe Kunzler, a recipient of a Washington Coalition for Open Government award, told AGO officials that triaging requests allows the public records officer to separate them based on their timeliness.

“I think that when members of the media come forward and say, ‘Hey, I’m on a deadline and I need these records by such and such,’ that needs to be prioritized when it’s clearly a credible news outlet, not someone’s blog,” he said.

He said that while working for an aviation news publication, “I decided in all my wisdom to not request public records, because I knew I would not get them in time.”

At the same time, he opposed the notion that public officials should be able to use personal devices.

If it’s allowed, he said, “I think five days is way too long. It should be three days. Why? Because quite frankly, it’s disrespectful to the people who pay the bills. We live at a time of declining trust in government.”

Concurring with Kunzler was Collette Weeks, the executive director for the Washington Coalition for Open Government.

“We do not believe agency personnel should conduct public business on private electronic devices,” she said.

Additionally, she said “five days is too much” for public officials to transfer public records from personal devices.

The Center Square appeals

The Center Square has recently reported concerns with the AGO’s own handling of its public records requests, with one requester accusing the office of being “discriminatory” in how it handled requests for similar or identical records.

The Center Square has since filed several public records appeals with the AGO. One concerned redactions of draft bill language for the newly enacted income tax on the basis that it was work product, an exemption used for work related to actual or anticipated litigation.

The appeal also noted that an AGO legal memo released to The Center Square unredacted was then redacted when released in a separate installment of records. That same memo had days before been released unredacted to a separate requester on the basis that it had already been given to The Center Square unredacted.   

A separate appeal by The Center Square concerns a legal memo that was redacted in its entirety, including who wrote it, who it was sent to, and when it was sent.

The Center Square previously appealed redactions to attorney-client privileged communications between the AGO and legislators on the basis that, because the AGO had commented on them publicly, privilege had been waived.

In a June 16 email, public records counsel Jennifer Steele denied the appeal.

The Center Square “provided information and statements of your belief that members of the AGO have made public comments that you allege has waived any privilege that may be attached... I have determined the exemptions as applied to the records will remain intact," she wrote.

At the same time, the AGO recently advised the Secretary of State’s Office to release attorney-client privileged communications to The Center Square after it made an appeal to the SOS over redactions to public records. The Center Square made the same argument that privilege had been waived after the AGO issued public statements about them.