The following essays represent the analysis and viewpoints of their authors.

Disclosure Delays Plague Records Requesters

By Joan K. Mell

Although state law says agencies must make records “promptly” available to requesters, the government has various ways to delay disclosure -- even to the point of unilaterally canceling requests. The public and the media are then forced to wait, and wait some more, often for significant information that would shed light on rapidly unfolding public issues.

Sadly, Public Records Act (PRA) requesters frequently experience “disclosure delays.” Conceptually, PRA “disclosure delays” are an oxymoron. Washington’s citizens wanted nothing less than “prompt” access to public records.

The people expressly said so twice. RCW 42.56.080(2) states that “agencies shall, upon request for identifiable public records, make them promptly available to any person.” In addition, RCW 42.56.520(1) states that “Responses to requests for public records shall be made promptly by agencies, the office of the secretary of the senate, and the office of the chief clerk of the house of representatives.”

The courts interpreting the PRA have recognized that agencies should act with a sense of urgency. Whether an agency responds “promptly” may mitigate any penalty assessment if an agency otherwise violates the PRA. (1) When an agency unreasonably delays disclosure, a requester may sue over that delay as a stand-alone violation without waiting for the agency to close the request. (2) The requester need not prove the agency withheld any records. It may be sufficient that the agency simply took too long to respond. (3)

There is no finite point in time when a response is per se untimely because not all delays are unreasonable. The people said five business days is presumptively prompt. (4) Yet agencies do not routinely make public records available that “promptly.” Of those agencies that reported their 2021 public records data to the Joint Legislative Audit Review Committee (JLARC), the average number of days to respond is 20.

The PRA statute, RCW 42.56.520, identifies four specific grounds for an agency to extend response deadlines without any limits on the frequency or duration of such extensions:

1. the need to clarify the intent of the request
2. to locate and assemble the information requested
3. to notify third persons or agencies affected by the request
4. to determine whether any of the information requested is exempt and that a denial should be made as to all or part of the request.

Agencies rarely attempt to justify extensions, but rather unilaterally set expected deadlines and then extend them without pointing to any acceptable rationale. An agency is not required to explain its delays to the requester or estimate when it will fully respond, although the unreasonableness of any explanation of noncompliance may be an aggravating factor in a penalty assessment. (5)

After acknowledging receipt of the request within the first five business days, the agency has no other required deadlines. The five-day acknowledgment is the only mandatory notification. After that, an agency communicates when it chooses. Agencies may or may not communicate monthly, or with any predictable frequency. Agencies miss their own deadlines. Agencies extend their own deadlines multiple times. Agencies may choose not to communicate for months. All of this unreliability makes it difficult for a requester to anticipate when an agency will make the records available. Requesters must remain vigilant to avoid missing notifications that a record installment is ready.

Clarification requests

The triggering event for an agency to respond under the Public Records Act is its receipt of a request stated with sufficient clarity to give the agency fair notice that it has received a request for public records. (12)

Fair notice may be evaluated on various factors in two categories: the characteristics of the records and the characteristics of the request. (13) The factors relating to the characteristics of the request are:

• its language
• its format
• the recipient of the request. (14)

The factors relating to the characteristics of the records are:

• whether the request was for specific records, as opposed to information about or contained in the records
• whether the requested records were actual public records
• whether it was reasonable for the agency to believe that the requester was requesting the documents under an independent, non-PRA authority. (15)

The clarity of a public records request affects the agency’s obligation to respond and may be a mitigating factor in any penalty assessment. (16) Agencies understand these legal implications and can create ambiguity where there is none solely to justify a prolonged response.

A common clarification issue involves conjunctive and disjunctive terms in a request such as “and” / “or.” For instance, when requesting communications like e-mail, texts, and instant messaging among individuals, the agency may interpret the request to require disclosure of all senders and recipients in one communication rather than communications between any and all persons identified. Agencies could and should assume “and” and “or” to require production of everything, rather than some responsive information, but agencies are not uniformly that helpful.

Agencies have been trained to send an acknowledgment letter repeating the request and seeking clarification. In that communication, the public records officer sometimes explains how the agency will approach its search. A requester should carefully read and respond to such communications (and include a request to the public records officer to acknowledge the request has been clarified as of a specific date).

Requesters working with public records officers on clarification of a request should be cautious when the officer asks the requester to reframe the request. Agencies at times use the clarification process as a rationale for assigning a new tracking number to the request, which allows the agency to reset the start date for a response.

Agencies value later start dates because the start date may be the date from which a penalty calculation is measured. (17) The further back an agency can push its duty to respond, the more time an agency has to respond without penalty. Agencies should not have the discretion to unilaterally assign new tracking numbers when a requester clarifies an existing request solely to reduce the penalty calculation.

Consolidating requests

Agencies sometimes group requests by subject matter or requester to prolong response deadlines. For example, the state Employment Security Department grouped its processing of multiple requests for fraud investigative materials after the agency realized it lost hundreds of millions of dollars to thievery and mistakenly paid benefits during the pandemic. The agency held the requests indefinitely, responding to no one until leadership within the agency changed. Then it disclosed the materials.

In other instances, agencies consolidate requests from one requester, then phase responsive materials into multiple installments over time with page limits per installment. By doling out smaller installments over time, public interest dissipates, and the information becomes stale and useless, all while the agency creates the appearance of responsiveness. By the time the agency finishes responding years later, and the case is finally ripe for filing an enforcement action, the requester no longer needs the information and cannot justify investing the necessary resources to hold the agency accountable for its deliberate delaying tactics.

In a recent success for rolling back grouping policies, The Seattle Times negotiated a pre-litigation settlement with the Seattle Police Department (SPD) in which the SPD agreed to no longer group requests filed more than two months apart. The SPD also agreed to hire four temporary employees to help work through the agency’s large backlog of requests. In the past, that backlog had become part of the SPD’s justification for its grouping practices.

Multiple requests

In the past, a requester could submit a public records request to a government entity and the entity would identify the appropriate department to respond to the request. A request to one agency department could have been answered by another department. (18) However, Pierce County in Koenig v. Pierce County (19) argued successfully that the prosecutor’s office and sheriff’s department were discrete units of local government such that a public records officer had no duty to locate responsive records from another department. Since Koenig, other agencies have limited searches by department, which shifts the burden back to requesters to submit a request for records from discrete divisions within an agency to obtain a complete response.

Requesters unfamiliar with an agency and its operations may not know where records are maintained or who prepares, owns, or uses the records. This confusion stifles their ability to request the information from the right place. There have been no binding court decisions obligating agencies to inform requesters where the information is likely to be located. Agencies may opt to remain silent, which is what the state Redistricting Commission director did over the objections of the public records officer who wanted to inform requesters that the records they were seeking were likely in the possession of the legislative caucuses. The absence of any affirmative duty on agencies to assist a requester in locating responsive records does not adhere to PRA policy of providing requesters with the “fullest assistance.” (20)

The division of duties within an agency also complicates the process for requesters who then must manage multiple requests to a single agency. A requester ends up purchasing duplicated records. Variations in the practices of public records officers within distinct divisions frustrate both seasoned and novice requesters. Agencies should be required to assign requests among departments and assist requesters in processing a request from the agency without having to duplicate the same request to multiple departments.

Non-Responsive records

Invariably, agencies prepare records for disclosure based upon content, releasing non-controversial content first. The more interesting content usually comes in later installments, if at all. Agencies are less able to delay production of meaningful content when the request is simple. Agencies can and should ask a requester to prioritize the categories of a request for multiple records. However, agencies do not commonly ask, leaving the requester with no idea how the agency is grouping or prioritizing installments. For this reason, it is better to submit multiple one-item requests than one request for multiple items. Agencies should inform requesters of the content retrieved from a search to affirm the information is responsive prior to sending an installment. However, agencies do not take time to verify that the information located in a search is actually responsive. A requester who receives non-responsive records in any installment should document how the information is non-responsive in writing to put the agency on notice that the information is not what the requester wants.

Internal interested party notifications

In the midst of a fraud scandal, the state’s Employment Security Department (ESD) chose to send documents to the official who created or received the record before disclosing the records to a requester. This prolonged response times for months. The thought was that the official should know when records implicating the official’s conduct were about to be released. The PRA expressly prohibits withholding records that embarrass or inconvenience officials (21). When sued, ESD agreed to stop sending documents to officials to review prior to disclosure.

Third party notifications

Agencies have been trained to provide notice to individuals who are the subject of documents requested if the agency has privacy concerns about disclosing the records. (22) The agency will give an individual time to file for injunctive relief to stop the disclosure. When an agency uses this option, a requester should ensure that the agency has limited the content of what it is withholding and has not delayed production of records that are not exempt.

Joan K Mell is a veteran attorney who works out of her own Tacoma law firm, III Branches Law. She represented WashCOG in its separate open-government lawsuits against the Washington State Redistricting Commission and the state Legislature.

1. Yousoufian v. Office of Sims, 165 Wash.2d 439, 200 P.3d 232 (2009), reconsideration granted, on reconsideration 168 Wash.2d 444, 229 P.3d 735.
2. O’Dea v. City of Tacoma, 19 Wash. App. 2d 67, 89, 493 P.3d 1245, 1256 (2021).
3. Id.
4. RCW 42.56.520.
5. Hobbs v. State, 183 Wn. App. 925, 335 P.3d 1004 (2014); Yousoufian v. Sims, 168 Wn. 2d 444, 229 P.3d 735 (2010).
6. O’Dea v. City of Tacoma, 19 Wn. App. 67, 493 P.3d 1245 (2021).
7. Hobbs v. State, 183 Wn. App. 925, 335 P.3d 1004 (2014).
8. Zink v. City of Mesa, 162 Wn. App. 688, 256 P.3d 384 (2011).
9. Freedom Foundation v. DSHS, 9 Wn. App. 2d 654, 445 P.3d 971 (2019).
10. Levy v. Snohomish County, 167 Wn. App. 94, 272 P.3d 874 (2012).
11. Rufin v. City of Seattle, 199 Wn. App. 348, 398 P.3d 1237 (2017).
12. O’Dea v. City of Tacoma, 19 Wn. App. 2d 67, 80, 493 P.3d 1245 (2021).
13. Id.
14. Id. at 81.
15. Id.
16. Yousoufian v. Office of Sims, 165 Wash.2d 439, 200 P.3d 232 (2009), reconsideration granted, on reconsideration 168 Wash.2d 444, 229 P.3d 735.
17. Zink v. City of Mesa, 4 Wn. App. 2d 212, 419 P.3d 847 (2018); Sanders v. State, 169 Wn. 2d 827, 240 P.3d 120 (2010).
18. Vance v. Offices of Thurston County Comm’rs, 117 Wn. App. 660, 668, 71 P.3d 680 (2003).
19. Koenig v. Pierce County, 151 Wn. App. 221, 211 P.3d 423 (2009) (20) RCW 42.56.100.
20. RCW 42.56.550(3).
21. RCW 42.56.540; Lyft, Inc. v. City of Seattle, 190 Wn. 2d 769, 418 P.3d 102 (2018).