§6.8 Producing Records

• Jurisdiction: Washington

§6.8 PRODUCING RECORDS

This section discusses how records are to be produced in response to a PRA request.

(1) Double-check prior to production

The agency should take all reasonable steps to ensure PRA compliance before producing or withholding records. Problems can be avoided by reevaluating the scope of the search one last time to make sure no obvious leads were overlooked, and by looking for any obvious issues such as date gaps that suggest records have been missed.

Practice Tip: For agencies. When an agency seeks a judicial determination regarding the application of an exemption, it should produce records promptly if a court rules that the exemption does not apply, unless the agency intends to appeal that ruling (in which case, it should seek a stay pending appeal). See, e.g Wade's Eastside Gun Shop, Inc. v. Dep't of Labor &amp Indus., 185 Wn.2d 270, 372 P.3d 97 (2016) (trial court increased daily penalty when agency took nine days to make redactions in thousands of pages of an investigative file after trial court ruled records were not categorically exempt).

(2) Collecting costs of making copies

Requestors may state how they want records to be produced. When considering whether to accommodate these requests, an agency should remember that it must provide the "fullest assistance" to the requestor while taking into account agency resources, capabilities, and other valid concerns.

Practice Tip: Agencies can assist requestors by posting their fee schedules prominently on their websites outlining either the actual costs they've calculated or the default schedule outlined in RCW 42.56.120(2)(b), whichever applies. When an agency posts a record on its website prior to receiving a request, the agency "shall not impose copying charges under this section for access to or downloading of records that the agency routinely posts on its public internet web site prior to receipt of a request unless the requestor has specifically requested that the agency provide copies of such records through other means." RCW 42.56.120(2)(e).

(a) Inspection versus copies

A requestor may wish to inspect records responsive to a request and is entitled to do so. See RCW 42.56.120. If the requestor is not able to physically inspect the records, the agency is not required to provide free copies of records for which it would otherwise charge. An inmate can pay for copies or designate a third party to inspect on his or her behalf. Sappenfield v. Dep't of Corn, 127 Wn.App. 83, 88-90, 110 P.3d 808 (2005), review denied, 156 Wn.2d 1013 (2006) (inmate not allowed to physically travel to agency did not have a right to free copies); Gronquist v. Dep't of Corn, 159 Wn.App. 576, 586, n.7, 247 P.3d 436 review denied, 171 Wn.2d 1023 (2011) (when inmate requestor who could not travel to inspect the records demanded free copies, agency was not required to comply or even gather the responsive records). See generally Livingston v. Cedeno, 164 Wn.2d 46, 51-53, 186 P.3d 1055 (2008) (holding that jail rules relating to safety that deprived an inmate of access to public records did not violate PRA; inmate could have requested records be delivered to someone outside of prison).

Comment: Some requestors believe an agency can respond more quickly to a request to inspect public records than to a request for copies of those records. However, in most instances, the amount of processing is virtually the same whether a requestor asks for access to inspect records or for copies of records. .

(b) Inspection process

No fee can be charged for inspection of a public record. See RCW 42.56.120; WAC 44-14-07001(1). This is true even when the agency needs to make copies of records before an inspection, such as when a record must be redacted. If an agency allows a requestor to inspect an exempt record or fails to make a redaction, it may waive the agency's ability to assert that exemption. Therefore, the agency will have to determine exemptions, pull exempt records, and make copies to make necessary redactions before allowing a requestor to inspect records. If an agency is electronically redacting records, it will need to either print the records for inspection purposes or make them available for inspection electronically on an agency computer. If redactions or withholdings are being made, an associated redaction and/or exemption log should be provided at the time of inspection.

Agency copying facilities should be reasonably available to persons inspecting public records, except to the extent that to do so would disrupt agency operations unreasonably. See RCW 42.56.080. This requirement should not be limited to photocopying equipment. An agency need not maintain or provide public access to any particular type of reproduction equipment. An agency need only make it possible to provide copies of public records upon request to a person who is inspecting them. Copies of records do not need to be provided at the time of inspection, as long as the agency provides them within a reasonable time frame.

Practice Tip: The PRA does not require an agency to provide self-service copying. Many agencies find it is easier to maintain the integrity and organization of files if they ask each person inspecting files to tag any records the person wishes to have copied. An agency employee then makes copies of the requested records. This approach allows an agency to retain copies of records provided to the requestor in the event of a reviewing court's in camera review of the agency's response to a public records request.

The agency should allow a requestor to bring in outside equipment unless it would interfere with other essential agency functions or create a risk that the records would be damaged or become disordered. If there is no such risk or the outside equipment is a noninvasive device like a camera, then it should be allowed.

Practice Tip: In some situations, particularly for large requests, it may be in both parties' interests to have the copying done by an outside commercial entity. This can result in quicker production times, but may be more expensive, depending on how the records are organized.

...