BILL REQ. #:  H-0263.2 

Read first time 01/18/11.   Referred to Committee on State Government & Tribal Affairs.

     AN ACT Relating to conferences regarding public records requests disputes; and reenacting and amending RCW 42.56.550.

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

Sec. 1   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)(a) Before filing any court action alleging a violation of this chapter pursuant to subsection (1) or (2) of this section, the requester and agency may first confer in person or by telephone regarding any dispute. For claims filed pursuant to subsection (1) of this section, no action should be commenced until fifteen days have elapsed after the conference occurs. The one-year statute of limitation shall be stayed and daily penalties shall not accrue during the fifteen-day period.
     (b) The requester or agency filing suit shall also file a certification that it has conferred, or if it has not conferred, that it has not conferred. This section does not require a requester to explain any purpose or reason for requesting the records. This section does not require a conference, or create a right to file an action in court based on the denial of a request for a conference.
     (4) 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))) (5)(a) 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 attorneys' 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.
     (b) The award of daily penalties and costs is mandatory unless a requester or agency elects to file suit without conducting the conference pursuant to subsection (3) of this section in good faith, or if the requester or agency files a lawsuit pursuant to subsection (1) of this section without waiting the full fifteen days after the conference, in which case the award is discretionary. In exercising this discretion, the court may consider the following nonexclusive factors:
     (i) Whether the requester had need to obtain the records in fewer than fifteen days;
     (ii) Whether a conference would have been futile;
     (iii) Whether the agency's initial response was in bad faith; and
     (iv) Whether the request serves the public interest.
     (((5))) (6) For actions under this section against counties, the venue provisions of RCW 36.01.050 apply.
     (((6))) (7) 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.
     (8) As used in this section, "conference" means an in-person meeting or telephone conversation between the agency and the person requesting records to resolve any issues to avoid litigation.