Chapter §16.2 Actions Initiated by Requestors

• Jurisdiction: Washington

§16.2 ACTIONS INITIATED BY REQUESTORS

Two requestor-initiated causes of action are listed in the PRA. First, a requestor may challenge an agency's denial of an opportunity to inspect or copy a public record. RCW 42.56.550(1). As detailed in subsection (1), below, such a claim may be based on a variety of agency actions or inactions. Second, as discussed in subsection (2), below, a requestor may challenge the reasonableness of an agency's estimate of the time or charges for responding to a request. RCW 42.56.550(2).

(1) Challenges to an agency's denial of access to records

Under RCW 42.56.550(1) and decisions interpreting it, agency actions subject to challenge on a "denial of access" claim include (1) the agency's claim that records are exempt, (2) failure to respond or to produce records, (3) failure to provide a reasonable time or charges estimate to produce records, and (4) inadequate search for records. Each is discussed in turn below.

(a) Challenges to a claim that the records are exempt

The most common PRA legal action is a challenge to an exemption claimed by an agency under RCW 42.56.550(1). The PRA provides that any person who has been "denied an opportunity to inspect or copy a public record" may initiate an action in the superior court where the record is located or a neighboring county if the responding agency is a county. RCW 42.56.550(1), (5); RCW 36.01.050.

(b) Failure to timely respond or to produce records

An agency is required to comply with the strict time requirements of the PRA. In Doe I v. Washington State Patrol, 80 Wn.App. 296, 303, 908 P.2d 914 (1996), the court found that the agency violated the PRA by failing "to comply with the strict requirements of RCW [42.56.520]." The agency had not responded within five business days of receiving the request. In Smith v. Okanogan County, 100 Wn.App. 7, 994 P.2d 857 (2000), an agency failed to provide a five-day response to a records request. The court ruled that this was a per se violation of the PRA. Id. at 13; see also West v. State Dep't of Natural Res., 163 Wn.App. 235, 244, 258 P.3d 78 (2011), review denied, 173 Wn.2d 1020 (2012) (the failure to acknowledge a request for records within five business days was a violation of the PRA). In Hikel v. City of Lynnwood, 197 Wn.App. 366, 389 P.3d 677 (2016), an agency failed to provide an estimate of time in the five-day response and instead asked for clarification. The court ruled this was a violation of the PRA, entitling the requestor to an award of attorney fees but not daily penalties. A requestor cannot maintain an action alleging a violation of the prompt response requirement based on an agency's failure to respond in less than five days, however, even if the agency could have responded in less than five days. Zink v. City of Mesa (Zink II), 162 Wn.App. 688, 709, 256 P.3d 384 (2011), review denied, 173 Wn.2d 1020 (2012) (because PRA allows five days to respond, penalties only start to accrue after five-day period has expired). For more information on per se violations as a possible basis for penalties, see Chapter 18(Court-Awarded Attorney Fees, Costs, and Penalties) of this deskbook.

Comment: Notwithstanding the holding in Zink, it is a best practice for agencies to produce records in less than five days when possible, especially if the requestor has an immediate need and has not unduly delayed in making the request. Moreover, even if a requestor may not be able to show a violation by proving the agency could have responded in less than five days, if the agency has otherwise violated the PRA, such violation could be a factor in a penalty determination. Zink, 162 Wn.App. at 710.

In American Civil Liberties Union v. Blaine School District No. 503 (ACLU I), 86 Wn.App. 688, 695, 937 P.2d 1176 (1997), an agency refused to mail the records to a requestor across the state in violation of the PRA. See RCW 42.56.080. The court held that the agency "effectively denied" access to the public records by not mailing them, and thus the requestor was denied an...