BILL REQ. #:  Z-0362.1 

Read first time 01/13/11.   Referred to Committee on State Government & Tribal Affairs.

     AN ACT Relating to providing agencies notice of a dispute under the public records act and an opportunity to cure error in the production of public records; reenacting and amending RCW 42.56.550; adding a new section to chapter 42.56 RCW; creating a new section; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature declares that the purpose of the public records act is to make public records available to the people of this state so that they remain informed about the conduct and performance of government. Although penalties may be assessed in favor of a person who files a court action under the act, the payment of penalties diverts funds provided by tax and fee payers from programs and services that benefit all the people. The legislature finds that some requesters do not inform an agency of a disagreement or possible mistake in the production of records until after a court action is filed, leaving the agency with no opportunity to correct an error and thereby maximizing the agency's potential liability for penalties. In order to ensure that public records are made available without an unnecessary diversion of public funds, the legislature finds that an agency should be given an opportunity to cure an error and provide the public record that may have been previously withheld or not located. This will strengthen the purpose of the act and reduce the loss of public funds through the assessment of penalties.

NEW SECTION.  Sec. 2   A new section is added to chapter 42.56 RCW to read as follows:
     (1) A person who may file an action under RCW 42.56.550, referred to in this section as the "requester," may present a public records claim to the agency that previously denied the request by following the procedures in this section. A claim is deemed presented when the completed claim is received by the agency after the agency has denied the requester an opportunity to inspect or copy a public record and before the date an action is filed by the requester under RCW 42.56.550.
     (2) A public records claim shall be presented to the agency and addressed to the public records officer. The claim shall be in writing, state that it is a public records claim, and contain the information listed in subsection (3) of this section. The attorney general's office shall provide a claim form on its web site that requesters may choose to use.
     (3) The requester shall provide the following information on or with the claim:
     (a) The name of the agency to which the request for public records was submitted, and any tracking number the agency assigned to the request;
     (b) A copy of the public records request at issue;
     (c) The name of the requester;
     (d) A mailing address and, at the option of the requester, an electronic mail address to which the agency should send its response to the claim;
     (e) The date the claim was completed;
     (f) A description or list that specifies which record or records, or portions thereof, the requester asserts have been improperly withheld, redacted, or otherwise denied, together with a brief explanation as to why the record or records, or portions thereof, should be produced;
     (g) If the requester believes the agency has failed to produce records or respond to a request, any other information the requester can provide to assist the agency in identifying and locating the requested records; and
     (h) Any other information the requester wants the agency to consider.
     (4) The agency must send a response to the requester no later than twenty-one calendar days after delivery of the public records claim to the agency. The response must be sent by United States mail or, if the requester has so requested, by electronic mail. A response is deemed sent on the date it is deposited in the United States mail, first-class postage prepaid. A response transmitted by electronic mail is deemed to have been sent on the date indicated on the face of the electronic mail.
     (5) The agency may respond to the claim by:
     (a) Granting all or part of the claim by producing some or all of the records, or portions of records, that the requester asserted had been withheld, redacted, or otherwise denied improperly or not produced; and
     (b) Rejecting all or part of the claim in writing, with or without explanation. A failure to send a response within the time specified in subsection (4) of this section is deemed to be a rejection of the claim.
     (6) The applicable period of limitations within which an action must be commenced under this chapter shall be tolled during the twenty-one calendar day period. For the purposes of the applicable period of limitations, an action commenced within seven court days after the twenty-one calendar day period has elapsed is deemed to have been filed timely.
     (7) The presentation of a public records claim to the agency is not a prerequisite for filing an action in court under RCW 42.56.550. However, if a requester does not present a public records claim in accordance with this section before the date an action is filed in court, the agency has until thirty calendar days from the date of service of the action on the agency to produce for inspection or copying the records that previously had been denied.
     (8) A penalty under RCW 42.56.550(4) shall not be awarded regarding any record or portion thereof that the agency produces to the requester:
     (a) In response to a public records claim presented in accordance with this section; or
     (b) Within the time period provided in subsection (7) of this section after the filing of an action in court under RCW 42.56.550, if a public records claim was not presented before the date of the filing of the action.

Sec. 3   RCW 42.56.550 and 2005 c 483 s 5 and 2005 c 274 s 288 are each reenacted and amended to read as follows:
     (1) Upon the motion of any person having been denied an opportunity to inspect or copy a public record by an agency, the superior court in the county in which a record is maintained may require the responsible agency to show cause why it has refused to allow inspection or copying of a specific public record or class of records. The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records.
     (2) Upon the motion of any person who believes that an agency has not made a reasonable estimate of the time that the agency requires to respond to a public record request, the superior court in the county in which a record is maintained may require the responsible agency to show that the estimate it provided is reasonable. The burden of proof shall be on the agency to show that the estimate it provided is reasonable.
     (3) Judicial review of all agency actions taken or challenged under RCW 42.56.030 through 42.56.520 shall be de novo. Courts shall take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others. Courts may examine any record in camera in any proceeding brought under this section. The court may conduct a hearing based solely on affidavits.
     (4) Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record. However, a court shall not award any penalty regarding any record or portion thereof that the agency produces pursuant to section 2 of this act.
     (5) For actions under this section against counties, the venue provisions of RCW 36.01.050 apply.
     (6) Actions under this section must be filed within one year of the agency's claim of exemption or the last production of a record on a partial or installment basis.

NEW SECTION.  Sec. 4   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.