INITIATIVE NO. 276 ‑- OFFICERS AND OFFICERS ‑- REPORTS OF FINANCIAL INTEREST ‑- PUBLIC RECORDS

INITIATIVE NO. 276 ‑- OFFICERS AND OFFICERS ‑- REPORTS OF FINANCIAL INTEREST ‑- PUBLIC RECORDS

(1) Section 24 (1) (e) of Initiative No. 276 is applicable to the prosecuting attorney of a county with respect to his preparation of legislation for his county.

(2) In order to comply with the reporting requirements of § 24 (1) (f) of Initiative No. 276, in the case of a prosecuting attorney, it will be sufficient simply to include that during the reporting period the individual performed the duties and functions of prosecuting attorney of his county in return for his statutory compensation.

(3) Section 26 (1) of Initiative No. 276 requires each county to adopt rules governing the availability for public inspection and copying of its public records.

(4) A request for inspection of records under Initiative No. 276 must describe the particular records sought with sufficient specificity to allow the agency having custody to produce the given record requested.

(5) In the event of a conflict between § 30 of Initiative No. 276 and preexisting statutes setting fees to be charged for copying public records, § 30 will prevail.

                                                                   - - - - - - - - - - - - -

                                                                 January 16, 1973

Honorable Paul Klasen
Prosecuting Attorney
Grant County Court House
Ephrata, Washington 98823                                                                                                                 Cite as:  AGLO 1973 No. 9

Dear Sir:

            This is written in response to your recent letter requesting our opinion on a number of questions pertaining to Initiative No. 276.

            As noted in AGO 1972 No. 29 [[to Irving Newhouse, State Representative on December 22, 1972]], copy enclosed, Initiative No. 276 (as approved by the voters at the November 7, 1972, election) consists of four basic chapters.  The first of these relates to electoral campaign financing; the second to the activities of lobbyists; the third to the disclosure of financial interests of candidates and elected officials; and the fourth to the maintenance of records in the public agencies.

            A.Questions regarding financial disclosure:

            You have first asked the following four questions with regard to the financial reports which are required to be filed by candidates and elected officials under § 24 of Initiative No. 276:

            "1. Does the financial interest in Section 24 (1) refer to the sum total of all bank deposits for the preceding twelve months?

            "2. Does the financial interest in Section 24 (1) (b) refer to all personal property including stocks, bonds, automobiles, jewlery?  Is each item to be valued separately or if the accumulative total is more than $500.00?

             [[Orig. Op. Page 2]]

            "3. Does Section 24 (1) (e) apply to a public officer ‑ say a prosecuting attorney who prepares legislation pertaining to bail jumping, wire tapping or criminal rules, etc. ‑ have to report?

            "4. Does Section 24 (1) (f) require a lengthy, itemized statement of activities performed by the elected officer, or phrased another way, what kind of a report is an elected official required to give in exchange for his salary?"

            As explained in AGO 1972 No. 29, supra, § 24 of Initiative No. 276 requires periodic reports of some eleven different items relating to the financial affairs of most candidates and elected officials.  The above four questions involve aspects of this requirement.

                                                                     ANALYSIS

            We begin our response by noting that the first two of these four questions are, in essence, already under consideration by this office in connection with an opinion request earlier received from a member of the state legislature, and we will be happy to provide you with a copy of this opinion when it has been completed.

            Your third question under this heading involves the requirement of § 24 (1) (e) that the reports of candidates and elected officials include a listing of:

            "All persons for whom actual or proposed legislation, rules, rates, or standards has been prepared, promoted, or opposed for current or deferred compensation; the description of such actual or proposed legislation, rules, rates or standards; and the amount of current or deferred compensation paid or promised to be paid; . . ."

            We can see no basis for excluding the official bill drafting, etc., activities of an elected officer (such as a prosecuting attorney) from the scope of this requirement.  Accordingly, our answer to this question is in the affirmative.

            Your final question regarding candidates' or elected officials' reports of financial or other affairs pertains to § 24 (1) (f) which requires the subject reports to include:

             [[Orig. Op. Page 3]]

            "The name and address of each governmental entity, corporation, partnership, joint venture, sole proprietorship, association, union, or other business or commercial entity from whom compensation has been received in any form of a total value of five hundred dollars or more; the value of such compensation; and the consideration given or performed in exchange for such compensation; . . ."

            As we understand it, your question here goes to the issue of how an elected official is to describe the services rendered by him as such under this subsection.  In our judgment, sufficient compliance with the requirements of this portion of the statute would be had by simply stating that during the particular reporting period, the individual in his capacity as, e.g., prosecuting attorney of Grant county, performed requisite official legal services for the officers of that county as required by RCW 36.27.020, in exchange for which he received his statutory salary.

            B.Questions dealing with public records:

            Secondly, you have asked for our opinion on the following questions relative to chapter IV of Initiative No. 276, dealing with public records:

            "1. Section 26 (1) requires each agency 'in accordance with published rules' shall make available for public inspection and copying all public records.  To what rules is this section referring?  Does this refer to rules that may be adopted by the commission pursuant to Section 37?

            "2. If the foregoing applies to the rules adopted by the commission, then nothing has to be done until the commission issues the rules?

            "3. Does Section 26 (4) supersede all previous court rules relative to the admission of evidence?  To what does Section 26 (4) apply.  This section appears to me to have some meaning only if the phrase 'for any other purpose' is deleted.

            "4. Section 26 (4) is of concern to the admissability of driving records and laws involving  [[Orig. Op. Page 4]] criminal prosecution or actions taken by the Department of Licenses pertaining to driving privileges.  Is Section 26 (4) to be interpreted that information held by the Department of Licenses is not to be admissable unless all of the information is made known to the public in general?

            "5. Under Section 27, what is the meaning of the phrase "identifiable records"? Does this mean identifiable by classification generally or does it refer to a specific item?

            "6. Does Section 28 require small districts such as cemetery districts and fire districts who have no full-time employees to now establish an office to be open at least thirty hours a week?

            "7. Does Section 30 repeal the fees set by law that the county auditor is to charge for copies where that fee exceeds the cost to the auditor incident to such copying?

            "8. Who is entitled to make the determination under Section 31 (1) (d) that the matter is confidential for law enforcement or for the protection of any person's right to privacy?"

            Questions (1) and (2):

            Although you have quoted, in part, from § 26 (1) in posing the first two of these questions, you have made no note of the following requirements of § 25:

            "Duty to Publish Procedures.  (1)  Each state agency shall separately state and currently publish in the Washington Administrative Code and each local agency shall prominently display and make available for inspection and copying at the central office of such local agency, for guidance of the public:

            "(a)  descriptions of its central and field organization and the established places at which, the employees from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain copies of agency decisions;"

             [[Orig. Op. Page 5]]

            See, also, § 29 of the initiative which provides that:

            "Agencies shall adopt and enforce reasonable rules and regulations, consonant with the intent of this act to provide full public access to official records, to protect public records from damage or disorganization, and to prevent excessive interference with other essential functions of the agency.  Such rules and regulations shall provide for the fullest assistance to inquirers and the most timely possible action on requests for information."

            In our opinion, the reference in § 26 (1) to the disclosure of the records of a public agency "in accordance with published rules" constitutes a clear reference to the rules which all state and local agencies are required, themselves, to publish under §§ 25 (1) and 29, supra.  We do not, on the other hand, view this reference to "published rules" as constituting a reference to such rules and regulations as may, from time to time, be promulgated by the "public disclosure commission" under § 37 of the initiative.  Accordingly, we do not believe that the adoption of rules or regulations by the commission has any bearing upon the present, immediate enforceability of § 26, supra.

            Questions (3) and (4):

            Your third and fourth questions regarding the "public records" chapter of Initiative No. 276 involve subsection (4) of § 26 which reads as follows:

            "A public record may be relied on, used, or cited as precedent by an agency against a party other than an agency and it may be invoked by the agency for any other purpose only if‑-

            "(a) it has been indexed in an index available to the public; or

            "(b) parties affected have timely notice (actual or constructive) of the terms thereof."

             [[Orig. Op. Page 6]]

            The extent to which these provisions effect the use of public records in court proceedings under the various rules of evidence is also involved in another currently pending opinion request ‑ of which we will provide you with a copy when it is completed.

            Question (5):

            Next, you have made reference to § 27 of the initiative, which provides that:

            "Public records shall be available to any person for inspection and copying, and agencies shall, upon request for identifiable records, make them promptly available to any person.  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."

            You have asked for our opinion respecting the meaning of the phrase "identifiable records."  In our judgment, this simply means that unless the individual requesting access to a particular record is able to identify with sufficient specificity to make it possible for the agency to produce it, this individual will not be entitled to inspect the record.  In other words, we do not think that this section of the initiative contemplates "fishing expeditions" by persons demanding to have access to any and all records of the particular agency, whatever they may be.  The burden will be upon the person requesting access to identify it with sufficient specificity to allow the agency to produce a given record requested.

            Question (6):

            Your sixth question dealing with public records pertains to § 28 of the initiative, which provides that:

            "Public records shall be available for inspection and copying during the customary office hours of the agency:  PROVIDED, that if the agency does not have customary office hours of at least thirty hours per week, the public records shall be available from nine o'clock a.m. to noon and from one o'clock p.m. to four o'clock p.m. Monday through Friday, excluding legal holidays, unless the person making the request and the agency or its representative agree on a different time."

             [[Orig. Op. Page 7]]

            We find no exclusion from this requirement of any particular taxing district solely by reason of the fact that it does not have any full-time employees.  Accordingly, as a practical matter, your sixth question must be answered in the affirmative ‑ leaving it to the districts in question to engage such persons as are necessary to provide the service required by this section of the initiative or otherwise make provision for compliance therewith; e.g., by having the records located at a place where they can be examined during hours when the district's office, itself, is not open.

            Question (7):

            Your seventh question asks for our advice respecting the relationship between § 30 of the initiative and such existing statutes as RCW 36.18.010 respecting the fees to be charged by county auditors or other officers for the copying and certification of records in their custody.

            Section 30 of the initiative states that:

            "No fee shall be charged for the inspection of public records.  Agencies may impose a reasonable charge for providing copies of public records and for the use by any person of agency equipment to copy public records, which charges shall not exceed the amount necessary to reimburse the agency for its actual costs incident to such copying."

            Under § 47 of the initiative it is provided that

            ". . . in the event of conflict between the provisions of this act and any other act, the provisions of this act shall govern."

            However, of course, a conflict will arise between § 30, supra, and a fee statute such as RCW 36.18.010 only where it can be shown that the statutory "duplication and certification of records" fee is unreasonable or excessive under this section.  Since we would assume that the legislature, in establishing a fee schedule for the copying and certification of particular records, would generally have keyed this fee to a figure designed merely to cover the agencies' costs in providing this service (including costs of retrieval, etc., as well as physically copying and certifying the record), we would, accordingly, doubt that in most cases an actual conflict between § 30 and a statute such as RCW 36.18.010 can be shown to exist.

            Question (8):

            Finally, you have asked who is entitled to make  [[Orig. Op. Page 8]] the determination of § 31 (1) (d) of the initiative that certain material is to be exempt from public inspection because it constitutes "specific intelligence information and specific investigative files compiled by investigative, law enforcement and penology agencies, . . ."

            Initially, of course, the agency having custody of the particular record will be called upon to make this determination ‑ presumably with the advice of its own attorney.  However, in the final analysis, it will be the superior court of the county in which the subject agency is located that will have the responsibility for deciding the status of a particular record.  We will shortly be issuing an opinion to the prosecuting attorney of another county governing the mechanics of placing questions such as this before the court for its adjudication under the provisions of the initiative.  Again, we will be happy to make a copy of this opinion available when it has been completed.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General