Unredacted

Can an agency charge fees for scanning records?

Open Government Ombudsman — Wed, 30 Jun 2010 18:01:26 GMT

The Public Records Act doesn’t adequately address technology advances like scanning and commonly refers only to “copies” or “photocopies”. The PRA requires an agency to establish and make available for inspection a statement of its actual per page costs or other costs. RCW 42.56.070(7). In determining it’s actual per page cost, an agency may include staff time which is “directly related to the actual cost of copying the public records”. RCW 42.56.070(7)(b).

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

Open Government Ombudsman — Thu, 08 Oct 2009 21:16:49 GMT

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.

How does an agency calculate the time to initially respond to a public records request?

Open Government Ombudsman — Thu, 27 Aug 2009 18:34:21 GMT

The Attorney General’s Open Government Internet Manual provides guidance on calculating the time to respond to a public records request:

1.6 E. An agency must respond to a request for public records within five business days of receipt of the request pursuant to RCW 42.56.520.

What is a 'reasonable estimate'?

Open Government Ombudsman — Thu, 13 Aug 2009 21:15:26 GMT

A reasonable estimate will vary depending on many factors, and may be revised depending on circumstances.

Agencies have a duty to make available public records for inspection and copying unless specific information or records are exempt by law. RCW 42.56.070(1). An agency must promptly respond to a request for public records within five business days. RCW 42.56.520. That initial response may be one of several answers such as:

May an agency disclose electronic records in an electronic format of their choice?

Open Government Ombudsman — Thu, 13 Aug 2009 20:54:40 GMT

The Public Records Act doesn’t explicitly address disclosure of public records in an electronic format.

The Attorney General’s Model Rules provide non-binding advice on disclosure of electronic records in an electronic format. Based on the Attorney General’s Model Rules, an agency “should” disclose reasonably locatable electronic records in an electronic format when requested. WAC 44-14-050. The electronic format should be a commercially available format used by the agency, or an agency may also provide electronic records in an electronic format that is reasonably translatable from a different format used by the agency.

Do patients have the right to inspect and copy their x-rays?

Open Government Ombudsman — Fri, 07 Aug 2009 17:11:15 GMT

Washington state law (Revised Code of Washington (RCW) 70.02.080 ) addresses access to personal health care information as follows:

Patient's examination and copying — Requirements: (1) Upon receipt of a written request from a patient to examine or copy all or part of the patient's recorded health care information, a health care provider, as promptly as required under the circumstances, but no later than 15 working days after receiving the request, shall:

Are the administrative meetings of judges subject to the Open Public Meetings Act?

Open Government Ombudsman — Tue, 28 Jul 2009 21:17:18 GMT

The Open Public Meetings Act applies to “all meetings of a governing body of a public agency”. RCW 42.30.030. The act defines a “public agency” as “Any state board, commission, committee, department, educational institution, or other state agency which is created by or pursuant to statute, other than courts and the legislature.” RCW 42.30.020(1)(a) (Emphasis added).

Are police investigative records disclosable?

Open Government Ombudsman — Fri, 24 Jul 2009 21:07:07 GMT

As always, the law on these issues depends on the facts at hand. Police investigative records are presumptively disclosable if a defendant has been arrested and the case been referred to a prosecutor for a charging decision. Cowles Publ’g Co. v. Spokane Police Dep’t, 139 Wn.2d 472, 479 (1999). However, where matters have been referred to prosecution and a law enforcement agency asserts that nondisclosure is necessary for effective law enforcement, the trial court should conduct an in camera review and make a determination on a case-by-case basis, of whether nondisclosure is essential to effective law enforcement. Id. at 480.

Is a neighborhood association a quasi-governmental agency subject to the Public Records Act?

Open Government Ombudsman — Thu, 23 Jul 2009 18:13:45 GMT

It is unlikely the courts would consider a neighborhood association a “quasi-governmental agency.” The test for determining whether an entity is subject to the Public Records Act was set forth in the court case of Telford v. Thurston County Board of Commissioners, 95 Wn. App. 149 (1999). The court applied a four-part test to determine if two entities (a state association of counties and county officials) were the "functional equivalent" of public agencies.

May a council member attend a public meeting by telephone?

Open Government Ombudsman — Mon, 29 Jun 2009 22:50:42 GMT

The Open Public Meetings Act (OPMA) was adopted in 1971 and there is nothing in it that contemplates teleconferencing. The likely reason is that teleconferencing really wasn’t common and may have been too expensive in 1971. There is also no language in the OPMA to prohibit telephonic meetings. It only generally requires that meetings of the governing body be properly noticed, open and public, and that all persons shall be permitted to attend.

What can citizens do if they think a government body has illegally gone into executive session?

Open Government Ombudsman — Fri, 26 Jun 2009 17:06:26 GMT

Agencies may conduct a closed executive session only to discuss limited issues as specifically authorized by law pursuant to RCW 42.30.110(1). An authorized closed meeting may be for receiving legal advice from the council’s attorney on pending or existing litigation. The legal authority to have closed meetings must be construed narrowly and the governing body may not discuss or take final action on any issue that is not explicitly authorized by law.

What public records are protected by Attorney Client privilege?

Open Government Ombudsman — Thu, 25 Jun 2009 23:07:03 GMT

The attorney client privilege is “narrow privilege” and protects only communications and [legal] advice between attorney and client. Hangartner v. City of Seattle, 151 Wn.2d 439 (2004). It does not protect documents prepared for some other purpose even if they are attached in a communication to an attorney.

Who may attend a closed executive session?

Open Government Ombudsman — Tue, 23 Jun 2009 16:35:57 GMT

The OPMA is silent on allowing non-members, like consultants and focus groups, into an executive session. The WA Supreme Court has held that the exemptions to the OPMA must be construed narrowly (Tacoma v. Miller). My informal advice is that a non-member of the council may attend a closed executive session if their presence is vital to fulfilling the purpose of the executive session.

Can the public record a public meeting?

Open Government Ombudsman — Wed, 17 Jun 2009 22:30:12 GMT

The Open Public Meetings Act (OPMA) applies to the “governing body of the recognized student association”. RCW 42.30.200. http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.200

The Board of Directors is the “governing body” and therefore they are subject to the OPMA. You may record their public meetings without needing to request permission.

Can a public record be photographed by a requester?

Open Government Ombudsman — Wed, 17 Jun 2009 22:04:28 GMT

The Public Records Act (PRA) requires agencies to “make available for public inspection and copying all public records”. RCW 42.56.070(1). http://apps.leg.wa.gov/RCW/default.aspx?cite=42.56.070

There are other provisions of the PRA which clearly contemplate allowing a requester to use agency resources:

Agency facilities shall be made available to any person for the copying of public records except when and to the extent that this would unreasonably disrupt the operations of the agency. RCW 42.56.080.

What personnel issues may be discussed in a closed meeting? Is the information discussed in a closed meeting confidential?

Open Government Ombudsman — Wed, 17 Jun 2009 22:01:10 GMT

The Open Public Meetings Act (OPMA) requires that the meetings and deliberations of the governing body be conducted openly, except as otherwise provided. RCW 42.30.030. The provisions of the OPMA are to be construed liberally, and the exemptions narrowly, to fulfill this mandate. RCW 42.30.910.

Can informal communications between members of a governing body be a meeting of the governing body?

Open Government Ombudsman — Wed, 17 Jun 2009 21:54:24 GMT

The Open Public Meetings Act (OPMA) states “All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter.” RCW 42.30.030. The OPMA simply defines “meeting” as “meetings at which action is taken.” RCW 42.30.020(4). In the case of Wood v. Battle Ground School District, 107 Wn. App. 550, 562 (2001) the court found that the broad definition of “action” could encompass various means of communication. It concluded that an exchange of emails can constitute a meeting. Email meetings on behalf of the board of trustees do not provide the public with an opportunity to attend and therefore they would violate the OPMA.

Is there a duty to take minutes? What must they contain?

Open Government Ombudsman — Mon, 08 Jun 2009 21:52:43 GMT

RCW 42.32.030 states: “The minutes of all regular and special meetings except executive sessions of such boards, commissions, agencies or authorities shall be promptly recorded and such records shall be open to public inspection.” http://apps.leg.wa.gov/RCW/default.aspx?cite=42.32.030

However, there is nothing in the law that spells out what the minutes should contain.

How may I obtain public records from a state or local agency?

Open Government Ombudsman — Tue, 02 Jun 2009 18:48:33 GMT

I have for several years now been asking a county office for certain specific information, and not once have I received any of this information requested. I have not even gotten any response at all to my requests, they have been just plain ignored. I have been told there is a law for this problem but I could never find it. Could you tell me where to find it?

State and local agencies must “make available for inspection and copying all public records”. RCW 42.56.070(1). The Public Records Act is a “strongly worded mandate for broad disclosure of public records”. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127 (1978).

Can a study session be a meeting subject to the Open Public Meetings Act?

Open Government Ombudsman — Tue, 02 Jun 2009 18:29:32 GMT

1. Is an unscheduled, unannounced study session with an attorney present a special meeting (therefore a public meeting) if the entire board of a public agency is present? 2. Should minutes be recorded during special meetings? 3. Should minutes reflect more than a list of the agenda topics? 4. Should an executive session's purpose be announced during a scheduled public meeting and should the public meeting continue after the announced duration of the executive session?

RCW 42.30.020(4) defines a “meeting” as a meeting at which action is taken.

How much can an agency charge for copying costs?

Open Government Ombudsman — Tue, 02 Jun 2009 18:02:18 GMT

The Public Records Act allows an agency to impose a “reasonable charge” for providing copies of public records but states that “charges shall not exceed the amount necessary to reimburse the agency”. RCW 42.56.120. An agency may not charge to locate, review, or redact a public record. An agency shall make and publish a statement of its actual costs that are directly incident to copying, including the cost of paper, copying equipment, and postage for shipping. RCW 42.56.070(7). General administrative charges such as salaries and benefits of employees may not be included unless they are directly related to actual cost of copying. Staff time to copy and mail records may be included. RCW 42.56.070(7)(b).

Are emails between council members an illegal meeting?

Open Government Ombudsman — Wed, 13 May 2009 17:11:23 GMT

RE: Interpretation of an agency’s obligations regarding email communications between council members of a governing body.

The OPMA states “All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter.” RCW 42.30.030. The OPMA simply defines “meeting” as “meetings at which action is taken.” RCW 42.30.020(4). In the case of Wood v. Battle Ground School District, 107 Wn. App. 550, 562 (2001) the court found that the broad definition of “action” could encompass various means of communication. It concluded that an exchange of emails can constitute a meeting. Not all emails are ‘meetings’ under the OPMA. However, emails where action is taken on behalf of the governing body would violate the OPMA because email meetings do not provide the public with an opportunity to attend.

Welcome to Unredacted!

Open Government Ombudsman — Wed, 07 Feb 2007 22:52:25 GMT

Here you will find information about public records and open public meetings. The Open Government Ombudsman will share questions he is frequently asked and will provide his informal written analysis.