Chapter §6.3 General Requirements for Records Management and PRA Compliance

• Jurisdiction: Washington

§6.3 GENERAL REQUIREMENTS FOR RECORDS MANAGEMENT AND PRA COMPLIANCE

Requirements for agencies to ensure compliance with the PRA are discussed below.

(1) Before the request

Compliance with the PRA does not begin when someone makes a PRA request. It is more effective for an agency to take proactive measures than to explain to a requestor (or a court) after the fact why it lacked proper rules and procedures.

(a) Agency rules

The PRA mandates that agencies adopt and publish rules "to facilitate the full disclosure of public records to interested parties" that govern how requests will be processed and how records will be disclosed. Resident Action Council v. Seattle Hous. Auth. (RAC), 177 Wn.2d 417, 446-47, 300 P.3d 376 (2013), republished as amended, 327 P.3d 600 (2014); RCW 42.56.040, .070, .100. State agency rules must be published in the Washington Administrative Code. Local governments must prominently display the rules. It is a best practice to have agency rules prominently displayed on the agency's website.

Although the PRA includes several mandatory provisions an agency must include in its rules, agencies should treat these rules as an opportunity to publicize its best practices that inform requestors on how best to make PRA requests and how the agency will respond. This practice will simplify the process for the requestor and help set expectations, which can help avoid unnecessary disputes. If inadequate or nonexistent rules contribute to an agency's failure to comply and litigation results, court relief may include an injunction mandating the adoption of appropriate rules. RAC, 117 Wn.2d at 447.

A good starting place for an agency developing or updating its rules is Chapter 44-14 WAC, the AG Model Rules. RCW 42.56.570. These rules are intended to identify best practices and include some provisions not included in the PRA, and thus are not mandatory. WAC 44-14-00001 (only "best practices"); WAC 44-14-00003 (rules are "advisory only and do not bind any agency"). Nevertheless, the AG Model Rules include all of the mandatory requirements along with explanations and case citations. Moreover, the AG Model Rules have been cited numerous times by appellate courts to fill gaps in the PRA. See, e.g., Neighborhood Alliance of Spokane Cnty. v. County of Spokane, 172 Wn.2d 702, 739, 261 P.3d 119 (2011) (citing AG Model Rules to support trial court procedures for processing case); Burt v. State Dep't of Com, 168 Wn.2d 828, 834 n.4, 231 P.3d 191 (2010) (citing AG Model Rules in support of ruling that requestor was necessary party in third-party injunction lawsuit); Rental Hous. Ass'n of Puget Sound v. City of Des Moines, 165 Wn.2d 525, 539, 199 P.3d 393 (2009) (citing AG Model Rules in support of ruling that agency withholding a record must provide a "brief explanation"). But see Mitchell v. State Dep't of Corr, 164 Wn.App. 597, 606-07, 277 P.3d 670 (2011) (rejecting reliance on AG Model Rules to create an obligation on an agency that was not in the PRA itself because the AG Model Rules "are not binding, but rather provide useful guidance to agencies"); Bldg. Indus. Ass'n v. McCarthy, 152 Wn.App. 720, 736-37,218 P.3d 196 (2009) (rejecting claim that agency that did not comply with AG Model Rules had violated the PRA because "those guidelines do not bind any agency") (quotation omitted).

(i) The scope of the obligation to adopt rules

An agency's rules must (1) describe the agency's central office and field locations; (2) identify the "places at which, the employees from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain copies of agency decisions"; (3) describe "the general course and method by which its operations are channeled and determined, including the nature and requirements of all formal and informal procedures available"; (4) list any other "[r]ules of procedure"; and (5) include all "[s]ubstantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency" with amendments. RCW 42.56.040(1). An agency must also have a statement listing the amounts it charges for copies. This statement is often part of an agency's rules or an appendix to those rules. These requirements are explained in more detail below.

Agency rules that conflict with the provisions in the PRA are not valid. Kilduff v. San Juan County,___Wn.2d___, 453 P.3d 719, 725-26 (2019) (agency rules that created an additional layer of mandatory administrative review conflicted with PRA's provisions and unnecessarily delayed agency responses).

(ii) Listing exemptions

The agency must include "a current list containing every law, other than those listed in this chapter, that the agency believes exempts or prohibits disclosure of specific information or records" that the agency routinely cites. RCW 42.56.070(2). However, the failure to include a specific exemption will not prevent the agency from relying on that exemption. RCW 42.56.070(2).

(iii) Indexing records

RCW 42.56.070 imposes specific requirements on local and state agencies for making available indexes of certain types of documents.

RCW 42.56.070(3) requires local agencies to maintain and make available to the public indexes of the following types of records from January 1, 1973, forward: (a) opinions and orders in the adjudication of cases; (b) statements of policy and interpretations of policy statutes, and the Constitution; (c) staff manuals and instructions that affect the public; (d) planning policies, goals, and decisions; and (e) various reports and studies.

RCW 42.56.070(4) allows a local agency to opt out of the index requirement if it "would be unduly burdensome" to create and maintain an index. However, for any such opt-out the local agency must "issue and publish a formal order specifying the reasons why and the extent to which compliance would unduly burden or interfere with agency operations[.]" RCW 42.56.070(4)(a). It also must "make available for public inspection and copying all indexes maintained for agency use." RCW 42.56.070(4)(b).

Comment: As a best practice in records management and in being able to respond promptly to public records requests, local

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