No. An agency may not require the use of a specific form or a particular method (e.g., NextRequest, email), but it may strongly encourage the use of one. The PRA in RCW 42.56.080 provides that:
No official format is required for making a records request; however, agencies may recommend that requestors submit requests using an agency provided form or webpage.
The preferred form or method should be articulated in the agency's policy. The Attorney General’s Model Rules on Public Disclosure encourage an agency to make available a public records request form in order to protect both the agency and the requestor. Agencies are welcome to convert the request to the preferred form on their own initiative and may want to do so for tracking purposes.
Must elected officials submit a PRA request to obtain records from their agency?Under most circumstances, the answer is no. If the elected official needs the records in order to perform the duties of their office, then the official’s request for records should not be handled as a PRA request unless the agency has adopted its own policy regarding such requests. However, if the request is not pursuant to the duties of the elected official’s office, then the PRA, including the charging of any fees, will apply.
No, to both questions. The PRA does not require an agency to copy records into the specific electronic format requested or to deliver records in the specific electronic delivery method requested. See Mechling v. Monroe (2009) and Does v. Pierce County (2019). However, according to the Attorney General’s Model Rules on Public Disclosure, “[i]n general, an agency should provide records in the format requested if it is reasonable and feasible to do so.” See WAC 44-14-05001.
Agencies should adopt their own policies for the provision of electronic records, keeping in mind that what is reasonable and technically feasible for the copying and delivery of electronic records for one agency may not be for another, especially for smaller local governments that lack the electronic resources and staffing of larger agencies.
A records request can be considered abandoned if a reasonable time has passed since the requestor was notified that the requested records were available. The Attorney General’s Model Rules on Public Disclosure indicate 30 days is a reasonable time period to wait. See WAC 44-14-04005.
The agency should send a closing letter informing the requestor that their request is now closed and the reason why, inviting them to resubmit their request if they so choose.
Are records in possession of an agency consultant considered public records?They can be. If an agency contracts with a private company to provide agency services, then that company’s records related to the agency’s business may be subject to the PRA. The Washington Court of Appeals held in Cedar Grove v. City of Marysville (2015) that city-related records of a private consulting firm that provided professional services to the city were subject to the PRA since the firm was acting as the functional equivalent of a city employee. The court did qualify their holding as follows:
We are not articulating a new standard that makes every record a government contractor creates during its engagement with an agency a public record subject to the PRA. Nor do we create a new duty on the part of a public agency to search the records of all its third-party contractors each time it receives a PRA request.
So, whether the records of a private company that contracts with an agency are public records must be evaluated on a case-by-case basis by applying the “functional equivalent” balancing test (aka, the Telford test) to determine whether the company is acting as the functional equivalent of an agency employee. That test is:
An agency must identify in its response to the requestor that it has withheld or redacted a document. If an agency does not, it would be silently withholding a record, which is a PRA violation. In identifying the document withheld or redacted, the agency must cite the specific statute that exempts the record and provide a brief explanation on how that statute applies to the record at issue (RCW 42.56.210). In most cases, agencies will find it easiest to provide this information in an exemption log. In some cases, though, for example where only one document is redacted, it may make more sense to identify the statute and provide the brief explanation on the redacted document itself or in a cover letter.
An agency can waive copying fees but must do so pursuant to an adopted policy regarding waiver of copying fees. See RCW 42.56.120(4).
Can an agency charge for the time it spends redacting records?No, agencies may not charge for time spent redacting information in a record. Redacting information is considered part of making a record available for copying or inspection and an agency cannot charge for making a record available for inspection and copying. See RCW 42.56.120(1). The one exception to this rule is redaction of body camera video recordings, where the cost to redact can be charged in some circumstances. See RCW 42.56.240(14).
Text messages on a public employee’s or official’s personal phone are public records if the message is within the public employee’s or official’s scope of employment. An employee's/official’s communication is "within the scope of employment" when their job requires it, their employer directs it, or it furthers their employer's (i.e. the government’s) interests. See Nissen v. Pierce County (2015). If the text message on a personal device or account does not fall within the scope of employment test, then it is not a public record.
Are call logs from a personal phone a public record?Under most circumstances, call logs from a public employee’s personal phone are not public records to which the PRA applies. See Nissen v. Pierce County (2015). To be a public record, the call log must be "prepared, owned, used, or retained by any state or local agency" and relate to the conduct of government; in most circumstances, a personal call log will not meet this threshold. However, if an agency reviews an employee’s personal call log for a disciplinary matter or as part of their cell phone reimbursement policy, then, arguably, the log has been “used” and that use was related to the conduct of government. In those limited circumstances, the call log could be a public record.
Is an employee's internet browsing history on an agency-owned device a public record?Yes. A public employee’s work-related internet browsing history on an agency-owned device constitutes a public record. See Belenski v. Jefferson County (2015). Note, however, that an employee’s internet browsing history is considered a non-archival, non-essential record and doesn’t have a required retention period (i.e., it can be destroyed once no longer needed for agency business). See Local Government Common Records Retention Schedule (CORE) DAN GS2016-006.
An agency-related Facebook post by a public employee or official on their personal Facebook account can be a public record if the post was made within the employee’s or official’s scope of agency employment. Since an agency acts exclusively through their employees or officials, the location of a record (whether on a personal account or public account) does not matter; in other words, public records can reside on private accounts or devices. See Nissen v. Pierce County (2015). Rather, the critical question with regard to whether an agency-related post on a personal Facebook account is a public record is whether the post was made in the employee’s official public capacity or scope of employment. For a post to be "within the scope of employment," their job must require it, their employer must direct it, or it must further their employer's (i.e. the government’s) interests. A post that only minimally or incidentally furthers an interest of the government, without more, is not a public record. See West v. City of Puyallup (2018). Active two-way communication with the public will likely cause a post to be considered a public record.
The Attorney General Model Rules state that:
unless otherwise provided by law, public records must remain in the legal custody of the office in which they were originally filed . . . [t]hey shall not be placed in the legal or physical custody of any other person or agency, public or private, or released to individuals, except [as allowed under the law or these regulations.] See WAC 434-615-020.
Based on this model rule and good governance, the best practice both from a records management and production perspective is for agency records to be maintained on agency-owned devices or accounts rather than personal devices or accounts or in a home office. In the circumstance where records are located on personal devices or accounts or in a home office, agencies should have appropriate policies in place for managing retention and production of those records.
What are the requirements related to retention of text messages?Text messages do not have a specific retention period—the period of retention is determined by the content of the text message itself. If a text message is used for a “transitory” purpose (such as “I will be 10 minutes late to our meeting”), then the text has no retention value and need not be saved. However, other text messages are more substantive, containing content that does trigger a retention requirement. (The Secretary of State’s retention schedules sets the retention period for various types of records.) Local agencies should develop policies on text messaging; please visit MRSC’s Text Messaging Policies webpage for examples of various policy approaches.
Per RCW 42.56.070(8), the PRA prohibits the disclosure of “lists of individuals” for a commercial purpose. The first thing to note is that the prohibition only applies to lists of individuals and does not apply to lists of businesses or information about individuals where requestors could create their own list. However, if the information is in an electronic record, such as an Excel spreadsheet, that can be sorted to display lists of individuals, the prohibition applies. See AGO 2019 No. 3.
The second thing to note is that a commercial purpose is defined as a business activity by any form of business enterprise intended to generate revenue or financial benefit. See SEIU Healthcare 775NW v. DSHS/Freedom Foundation (2016). If the requestor does not intend to use the list for commercial purposes, the prohibition does not apply.
The third thing to note is that it is not sufficient for the requestor to merely sign a declaration promising not to use the list for a commercial purpose. Rather, if the agency has a reasonable belief the individual will use the list for commercial purposes, the agency has an affirmative obligation to investigate how the requestor intends to use the list.
Here is a sample affidavit template that goes into greater detail. The template is a sample only, and may need to be adjusted by particular agencies or given the nature of particular records requests.
Is information about individuals who have signed up for a recreation program exempt?Sometimes. There is an exemption for the personal information of a child enrolled in a parks and recreation program, but there is no similar exemption for adults. See RCW 42.56.230(2)(a). The Public Records Act also prohibits agencies from giving or providing lists of individuals if the list was requested for a commercial purpose. See RCW 42.56.070(8) and our analysis on the commercial purpose prohibition in the FAQ: How should an agency proceed if it receives a request for lists of individuals?.
What information related to utility customers is exempt?The following utility customer information is exempt, per RCW 42.56.330(2):
A utility customer’s name and account number are not exempt.
In most circumstances, yes. RCW 42.56.230(3) exempts personal information of employees, appointees, and elected officials to the extent that disclosure would violate their right to privacy. RCW 42.56.250(1)(d) exempts personal information of employees and volunteers held in personnel records, public employment related records, volunteer rosters and employee/volunteer mailing lists. Thus, whether planning commissioners are considered appointees or volunteers, their home address is exempt. If a planning commission member or a subcommittee member uses their personal email or their personal phone to text for agency business, then their personal email and personal phone number would not be exempt as they could no longer meet the right to privacy test. However, if the individuals never used their personal email or their personal phone for agency business, then this personal information would remain exempt.
No. There is no exemption that covers dog license information or the personal information of those that adopt pets from public agencies.
Most standard performance reviews are exempt under the right to privacy in certain employment- or public service-related records under RCW 42.56.230(3) (Dawson v. Daly (1993)), including reviews of department heads (Church of the Divine Earth v. Tacoma (2020)), and school principals (Brown v. Seattle Public Schools (1993)). However, the following types of performance reviews are not exempt and must be provided upon request:
Disciplinary records that reflect substantiated allegations of employee misconduct are not exempt and must be disclosed upon request. (See Cowles Publishing Co. v State Patrol (1988) - holding that officer identities related to confirmed internal investigations are not exempt; Morgan v. Federal Way (2009) - holding that release of a disciplinary investigation report confirming many allegations of a judge’s inappropriate behavior did not invade the judge’s privacy, because many of the allegations were likely true and the substantial interest to the public of the elected judge’s job performance.)
Disciplinary record that reflect unsubstantiated allegations of employee misconduct also must be produced, although the employee’s identity may be exempt under some narrow circumstances under RCW 42.56.230(3), i.e. if disclosure would be “highly offensive.” Historically, the identity of an individual accused of sexual misconduct where the allegation was unsubstantiated was exempt. (See Bellevue John Does 1-11 v. Bellevue School District (2008) - holding that identities of teachers subject to unsubstantiated allegations of sexual misconduct are not a matter of public concern so should be redacted, although the remainder of the investigative report is subject to disclosure; Bainbridge Island Police Guild v. City of Puyallup (2011) - holding that an internal investigation of a police officer where allegations were unsubstantiated are subject to disclosure but the officer’s name should be redacted.) However, note that the legislature adopted a new exemption in the 2018-19 legislative session to protect on-going investigations of harassment in employment. See RCW 42.56.250(1)(h). That statute does not specifically exempt the name of the accused, it only protects the name of the complainant, accuser, and witness (whether the allegation is substantiated or unsubstantiated). Thus, whether the name of a person accused of sexual harassment in an unsubstantiated allegation is still exempt under Bellevue John Does 1-11 v. Bellevue School District is a question your agency attorney will need to weigh in on.
Are records of a former employee exempt?Records of a former employee should be treated the same as records of a current employee. If a record would be exempt from disclosure if the employee were still employed at the agency, then the record remains exempt after the end of their employment. See Belenski v. Jefferson County (2015) and MRSC's Blog Post PRA Employment Records Exemption Applies to Former Employee.
Is an employee's personnel file and payroll record exempt?An employee’s personnel file is not categorically exempt, but certain information is exempt, including:
Likewise, an employee’s payroll record is not categorically exempt. The following payroll information must be produced:
However, payroll deductions including the amount and identification of the deduction are exempt under RCW 42.56.250(1)(d). This would include:
Similarly, the following financial information is exempt and may be redacted under RCW 42.56.230(5):
Our take on tax withholding data is as follows:
No. While RCW 42.56.250(1)(b) exempts applications for public employment, the exemption specifically excludes applications for vacancies in elective office.