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When should an agency provide notice to third parties of a public records request?

When should an agency provide notice to third parties of a public records request?

(Public Records Act) Permanent link

The state Public Records Act states:

An agency has the option of notifying persons named in the record or to whom a record specifically pertains, that release of a record has been requested.  However, this option does not exist where the agency is required by law to provide such notice.

RCW 42.56.540 (emphasis added).  In addition, an appellate court case has suggested that where the record contains personal information that could be considered confidential, notice to the affected person is appropriate.  See Ameriquest Mortgage Co. v. State Attorney General, 148 Wn. App 145, rev. granted, 166 Wn.2d 1010 (2009).

The Attorney General’s model rules state:

Before sending a notice, an agency should have a reasonable belief that the record is arguably exempt. Notices to affected third parties when the records could not reasonably be considered exempt might have the effect of unreasonably delaying the requestor's access to a disclosable record.

WAC 44-14-04003(11).
However if an agency is required by law or contract to give such notice, then notice is mandatory.

The model rules conclude:

The notice informs the third party that release will occur on the stated date unless he or she obtains an order from a court enjoining release. The requestor has an interest in any legal action to prevent the disclosure of the records he or she requested. Therefore, the agency's notice should inform the third party that he or she should name the requestor as a party to any action to enjoin disclosure. If an injunctive action is filed, the third party or agency should name the requestor as a party or, at a minimum, must inform the requestor of the action to allow the requestor to intervene.

Notice may be appropriate where an agency has determined that disclosure is required but an arguable exemption may apply.  An agency should not delay notice and agencies have a duty for prompt responses to requests for disclosure of public records.  RCW 42.56.520.  The model rules recognize that the common practice among agencies is to provide 10 days notice to affected third parties.  The notice should provide the third party a copy of the request, a general description of the responsive records, and the actual date that the agency intends to disclose the records unless it is served with a signed order by a judge enjoining disclosure.  If the third party has filed for an injunction but the court has not yet heard the matter or will file imminently, it may be reasonable for the agency to wait for the court to rule before disclosing the records.

The Attorney General’s Model Rules provide the best practices for responding to requests for public records.  The model rules are non-binding advice for compliance with the Public Records Act.  Courts have cited the Attorney General’s Model Rules in three published cases.  Soter v. Cowles Pub. Co., 162 Wn.2d 716, 753 (2007); Rental Housing A’ssn of Puget Sound v. City of Des Moines, 165 Wn.2d 525, 539 (2009); Beal v. City of Seattle, 209 P.3d 872, 876 (2009) (holding that the Attorney General’s non-binding rules contain “persuasive reasoning”).

Posted by Open Government Ombudsman at 10/08/2009 02:17:03 PM 

DISCLAIMER: The "Unredacted" webpage and its content is not intended or offered to provide legal advice or legal representation by the Office of the Attorney General. The attorney general's office provides information, technical assistance, and training on the provisions of the Open Public Meetings Act pursuant to RCW 42.30.210 and provides information to records requestors and state and local agencies about "best practices" for complying with the Public Records Act consistent with the adoption of model rules pursuant to RCW 42.56.570. Send Feedback
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