Chapter §4.2 What Is a "Public Record"?

• Jurisdiction: Washington

§4.2 WHAT IS A "PUBLIC RECORD"?

"The PRA applies only to public records." O'Neill v. City of Shoreline (O'Neill II), 170 Wn.2d 138, 146, 240 P.3d 1149 (2010); see also Greenhalgh v. Dep't of Corr., 160 Wn.App. 706, 248 P.3d 150 (2011) (same). Therefore, "[t]he determination of whether a document is a 'public record' is critical for purposes of the [PRA]." Oliver v. Harborview Med. Ctr, 94 Wn.2d 559, 565 n.l, 618 P.2d 76 (1980); see also Confed. Tribes of Chehalis Res. v. Johnson, 135 Wn.2d 734, 746, 958 P.2d 260 (1998) (determining whether documents are a "public record" is a "threshold inquiry" in a PRA case). Put another way, "an agency facing a request for disclosure under the PRA should take the following steps: First, determine whether any public records are responsive to the request—if not, the PRA does not apply." Resident Action Council v. Seattle Hous. Auth. (MAC), 177 Wn.2d 417, 436-37, 300 P.3d 376, republished as amended, 327 P.3d 600 (2013).

"Public record" is broadly denned in RCW 42.56.010(3), and includes any writing containing information 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(3); see RAC, 177 Wn.2d at 431; Gendler v. Batiste, 174 Wn.2d 244, 252, 274 P.3d 346 (2012); see also Nissen v. Pierce Cnty., 183 Wn.2d 863, 876, 357 P.3d 45 (2015). Thus, "[a] public record is virtually any record related to the government's conduct or performance." Doe G v. Dep't of Corr, 190 Wn.2d 185, 191, 410 P.3d 1156 (2018). RCW 42.56.010(3) further provides that for requests to the House of Representatives or Senate, a "public record" has the same meaning as "legislative record," which is denned in RCW 40.14.100. As noted, "Legislative record" contains a narrower definition of information subject to disclosure.

The definition of "public record"

does not include records that are not otherwise required to be retained by the agency and are held by volunteers who:

(a) Do not serve in an administrative capacity;

(b) Have not been appointed by the agency to an agency board, commission or internship; and

(c) Do not have a supervisory role or delegated agency authority.

RCW 42.56.010(3) (as amended by Laws of 2017, ch. 303 §1).

The statutory definition of "public record" contains the following three elements: (1) any writing, (2) containing information relating to the conduct of government or the performance of any governmental or proprietary function, (3) prepared, owned, used, or retained by any state or local agency regardless of form or characteristics. Confed. Tribes, 135 Wn.2d at 746; see also Smith v. Okanogan County, 100 Wn.App. 7, 12, 994 P.2d 857 (2000) (same); Spokane Research & Def. Fund v. City of Spokane (Spokane Research I), 96 Wn.App. 568, 573, 983 P.2d 676 (1999), review denied, 140 Wn.2d 1001 (2000) (same); Yacobellis v. City of Bellingham (Yacobellis I), 55 Wn.App. 706, 711, 780 P.2d 272 (1989), review denied, 114 Wn.2d 1002 (1990). "All three elements of this three-prong test must be satisfied for a record to be a public record." Dragonslayer v. State Gambling Comm'n, 139 Wn.App. 433, 444, 161 P.3d 428 (2007).

Each of these three elements is discussed below.

(1) A "public record" includes a writing "regardless of physical form or characteristics"

The first element in the definition of a "public record" is whether it is a "writing." The term "writing" is defined for purposes of the PRA in RCW 42.56.010(4):

"Writing" means handwriting, typewriting, printing, photo stating, photographing, and every other means of recording any form of communication or representation, including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.

At the time of the PRA's adoption by popular initiative, what constituted a "writing" was a far simpler inquiry. Today, given the proliferation of technology used to create, exchange, and store information, writings include not only traditional "hard copies," but all forms of electronic data such as e-mails, text messages, websites, and social media postings. See WAC 44-14-03001 (attorney general's model rules on public records discussing definition of "public record"); see also Wade's Eastside Gun Shop, Inc. v. Dep't of Labor & Indus., 185 Wn.2d 270, 279, 372 P.3d 97 (2016) ("When the PRAwas enacted in 1972, we typically imagined public records as handwritten or typed, hard copy documents. Today, there is no doubt a record can be something other than a sheet of paper or a bound volume.") . Thus, in Nissen, the Supreme Court confirmed that text messages sent by a county prosecutor, even when located on a personal phone, were a "writing" under the Public Records Act. 183 Wn.2d at 879. The court held the same with respect to call logs for the prosecutor's personal cell phone. Id.

It is now well established that e-mail in its electronic format, along with its corresponding metadata, is a "public record." O'Neill II, 170 Wn.2d at 143-46; Mechling v. City of Monroe, 152 Wn.App. 830, 843,222 P.3d 808 (2009), review denied, 169 Wn.2d 1007 (2010). This extends to e-mails located on private accounts if they meet the remaining elements of the definition of a public record. West v. Vermillion, 196 Wn.App. 627, 636, 384 P.3d 634 (2016) (citing Nissen, 183 Wn.2d at 886), review denied, 187 Wn.2d 1024, cert, denied, 138 S. Ct. 202 (2017).

In O'Neill II, the Supreme Court ruled that if an e-mail is a public record, then the entire file, including the metadata associated with e-mail and other electronic records, is subject to the PRA. Metadata can describe who created or edited a particular file or message, when it was created, how it was formatted, and when and by whom it was collected. See also Wade's Eastside Gun Shop, 185 Wn.2d at 279 (explaining that in O'Neill II, the court "held that metadata, 'data about data, or hidden statistical information about a document that is generated by a software program,' can be a public record."). It may be created automatically by software or may be entered by hand. O'Neill II, 170 Wn.2d at 143-46. Because metadata may provide important information regarding government conduct, it is subject to PRA disclosure. Id. at 147. The metadata at issue in O'Neill II identified the IP addresses of the sender and recipient of a requested e-mail.

Practice Tip: If a requestor does not ask for records in electronic format, the agency is not required to produce the record in electronic format. Sargent v. Seattle Police Dep't, 167 Wn.App. 1, 21, 260 P.3d 1006 (2011) aff'd in part, rev'd in part on other grounds, 179 Wn.2d 376, 314 P.3d 1093 (2013). When a requestor is seeking records in electronic format, agencies should make sure that they know what specific electronic format the requestor is seeking. If the requestor wants the record in some format other than the record's native format, the agency should comply if the agency has the ability to covert the record and it is otherwise reasonable. Mechling, 152 Wn.App. at 850 (agency only required to convert record to PDF format if reasonable and electronically feasible); see also RAC, 171 Wn.2d at 446 (agency required to produce paper document in electronic format when conversion was possible without additional expense). See generally WAC 44-14-050 (model rules on producing electronic records). Metadata need only be produced when it is specifically requested. O'Neill II, 170 Wn.2d at 151-52.

Resolving an issue of first impression in Washington, the court noted that the legislative purpose of the PRA dictated its broad application, including metadata: "[the] PRA exists to ensure that the public maintains control over their government, and we will not deny our citizenry access to a whole class of possibly important government information." O'Neill II, 170 Wn.2d at 147. Because metadata could potentially illuminate important details about government functions—such as when a public record was created and by whom—the court held that metadata is a "public record" under the PRA and must be produced if requested. But because the PRA only requires providing a public record when it is "identifiable," an agency is not required to produce metadata unless it is specifically requested to do so. Id. at 151-52; see also Hood v. S. Whidbey Sch. Dist, 195 Wn.App. 1058, No. 73165- 3-1, 2016 WL 4626249, at *14 (Sep. 6, 2016) (unpublished) (finding no violation when "[t]he District provided the type of metadata that [the requestor] specifically requested," even though other forms of metadata allegedly were not provided), review denied, 187 Wn.2d 1020 (2017).

Along the same lines, posts to blogs and other websites, or to social networking sites such as Facebook and Twitter, may qualify as a "writing" under the PRA. West v. City of Puyallup, 2 Wn.App. 2d 586, 588, 410 P.3d 1197 (2018) ("[A] public official's posts on a personal Facebook page can constitute an agency's public records subject to disclosure under the PRA if the posts relate to the conduct of government and are prepared within a public official's scope of employment or official capacity"). According to the secretary of state, any post or entry made or...