Procedural Rules Under Washington's Public Records Act: the Case for Agency Discretion

• Publication year: 2021

PROCEDURAL RULES UNDER WASHINGTON'S PUBLIC RECORDS ACT: THE CASE FOR AGENCY DISCRETION

William D. Richard

Abstract: Voters adopted Washington's Public Records Act (PRA) in 1972 as part of a broader ballot measure to enhance openness in state government. The PRA requires state government agencies, including statewide agencies and municipalities, to establish procedures so that the public can request copies of records agencies generate. The PRA exempts certain records from disclosure, and other statutes and case law supply additional exemptions. When an agency refuses to disclose records, the requester may ask a court to determine whether an exemption applies. If no exemption applies, the court may compel disclosure of the records and impose monetary penalties against the non-compliant agency, including attorney fees. Under the PRA, courts review denials de novo and in light of legislative intent, erring on the side of broad public access. In addition to reviewing denials, courts have recently been asked to consider whether an agency's procedural rules under the PRA are reasonable. In analyzing procedural rules, some courts have applied the same broad interpretation used for substantive PRA questions, refusing to presume that an agency's procedural regulations are valid despite administrative law and municipal law doctrines requiring such a presumption. As a result, courts have imposed heavy penalties on public agencies at great taxpayer expense. This Comment argues that courts should presume an agency's procedural rules adopted for purposes of the PRA are valid as long as they are consistent with the statute's mandate.

INTRODUCTION

Washington's Public Records Act (PRA)(fn1) is a "strongly worded mandate for broad disclosure of public records."(fn2) Adopted in 1972,(fn3) the PRA gives interested members of the public the opportunity to access documents reflecting the inner workings of state and municipal agencies.

The PRA requires agencies to make certain records available for inspection and copying, subject to limitations in the PRA itself and rules adopted by the agencies themselves.(fn4) When an agency denies access to a record based on one of the PRA's disclosure exemptions, the requester may seek judicial review of that decision.(fn5) In reviewing agency denials, courts have generally been mindful of the Washington Legislature's declared intent to ensure broad access to public records.(fn6) As a result, courts construe the PRA's disclosure provisions broadly and its exemptions narrowly.

Historically, courts focused primarily on interpreting the PRA's disclosure and exemption provisions.(fn7) Only recently have litigants asked courts to consider the reasonableness of agency procedural rules and policies adopted to protect agency functions.(fn8) Faced with difficult facts and lacking clear guidance, state courts have taken different approaches to interpreting agency rules. As a result, some courts have imposed large awards against agencies, including attorney fees and daily statutory penalties. Taxpayers, in turn, ultimately pay these penalties through increased burdens on agency budgets.(fn9)

This Comment argues that, unlike the courts' approach to interpreting the substantive disclosure and exemption provisions of the PRA, courts should defer to an agency's own determination that its PRA procedures are reasonable. Part I discusses the PRA's history and relevant operative provisions. Part II examines the statutory mandate the PRA imposes on agencies, including a duty to adopt procedural rules as well as the duty to disclose records. Part III looks at agency procedural rules under the PRA in the broader context of administrative and municipal law. Part IV examines Washington courts' contradictory approaches to interpreting agencies' procedural rules under state administrative procedure law. Part V argues that, although the voters and the Legislature created a broad mandate for disclosure of public records, the breadth of that mandate should not overcome the rule of judicial deference to an agency's interpretation of its own procedural rules. Courts should presume that such rules are valid for purposes of the PRA because doing so avoids serious pragmatic problems without violating legislative intent.

I. THE PUBLIC RECORDS ACT IS A STRONGLY WORDED MANDATE FOR BROAD DISCLOSURE OF PUBLIC RECORDS

In 1972, Washington voters approved what is now the Public Records Act(fn10) as part of a sweeping measure designed to minimize secrecy and expose corruption in state government.(fn11) The PRA created a procedural and substantive regime under which, with a few limited exemptions, government documents are subject to disclosure upon request.(fn12) The PRA allows both state and local agencies to establish procedures for members of the public to obtain government records.(fn13)

A. Voters Adopted the Public Records Act as Part of an Open Government Measure

Initiative 276 (I-276) was put to Washington voters on the November 1972 general election ballot.(fn14) The bulk of I-276 dealt with campaign finance disclosures.(fn15) It established a public disclosure commission,(fn16) required political candidates to disclose the source and amounts of all campaign contributions,(fn17) compelled lobbyists to register with the state government,(fn18) and obligated government officials to disclose certain financial interests.(fn19)

The initiative also required the state to provide public access to government records.(fn20) In the state's official 1972 voters' pamphlet, the initiative's proponents stated that the public records provisions would make "all public records and documents in state and local agencies available for public inspection and copying," with exceptions "to protect individual privacy and safeguard essential governmental functions."(fn21) The initiative's opponents, however, went into more detail:[Initiative] 276 doesn't tell the taxpayer about added cost of government. Virtually every office of state and Local Government will incur added expenses-staff, office space, files, supplies and computer time-at a conservatively estimated cost of more than $2 million dollars [sic] annually. . . . It is impossible to estimate the potential cost to state, County and City Government of making all public records available for inspection and copying.(fn22)

In addition to I-276, the Legislature placed two competing public disclosure measures on the same ballot;(fn23) however, I-276 superseded both of them(fn24) and passed with seventy-two percent of the vote,(fn25) taking effect on January 1, 1973.(fn26)

B. The Public Records Act Prescribes Both Substantive and Procedural Rules for Access to Government Records

The PRA applies to most government agencies at the state, regional, county, and city levels.(fn27) Several of its provisions also apply to clerks of the legislative houses.(fn28) The clerks maintain "public records" subject to the PRA,(fn29) but the Legislature has authority to regulate access to records to prevent interference with legislative business.(fn30) Certain nongovernmental entities are subject to the PRA if they are "functional equivalents" of government agencies, as often occurs in the case of outsourcing.(fn31) The PRA does not apply to courts.(fn32)

The PRA requires agencies to disclose any "writing" relating to the conduct of government or the performance of any government function, whether proprietary or explicitly governmental.(fn33) The PRA also applies to certain legislative records.(fn34) The term "writing" encompasses every method of recording communications or representations.(fn35) If the disclosure of a record would violate a person's right to privacy, that record is exempt from disclosure.(fn36)

Agencies must follow certain procedures set by the PRA regarding public-disclosure requests. Agencies are required, for example, to make their public records available during customary office hours.(fn37) Each agency must also designate a public records officer to serve as a point of contact(fn38) and publish indexes for certain documents, such as adjudicative opinions and correspondence relating to policy matters.(fn39) Agencies are also required to make their copying facilities available to members of the public for copying records.(fn40)

II. THE PRA REQUIRES AGENCIES TO DISCLOSE RECORDS PROMPTLY under PROCEDURAL RULES PROMULGATED BY THE AGENCY

In addition to the procedural rules defined in the PRA itself, agencies also adopt their own PRA procedural rules and regulations to ensure prompt compliance with the disclosure requirements while protecting records and limiting interference with other agency functions.(fn41) Once an agency receives a public-disclosure request, it has a duty to respond promptly, either by providing the record, denying access to it, or providing a reasonable estimate of the time required to fill the request.(fn42) If the agency denies access to the records, the requester may seek de novo review in superior court.(fn43) If the requester prevails in court, he or she is entitled to recover attorney fees, court costs, and per diem statutory penalties assessed against the agency.(fn44)

A. Agencies Adopt Procedural PRA Rules Consistent with the PRA's Mandate

In addition to the procedural limits spelled out in the PRA, agencies may adopt procedural rules to prevent records requests from interfering...