ATTORNEY GENERAL'S OFFICE

The legislature directed the attorney general to adopt advisory model rules on public records compliance and to revise them from time to time. RCW ((42.17.348 (2) and (3)/)) 42.56.570 (2) and (3). The purpose of the model rules is to provide information to records requestors and state and local agencies about "best practices" for complying with the Public Records Act, ((RCW 42.17.250/42.56.040 through 42.17.348/42.56.570 ()) chapter 42.56 RCW ("PRA" or "act"). The overall goal of the model rules is to establish a culture of compliance among agencies and a culture of cooperation among requestors by standardizing best practices throughout the state. The attorney general encourages state and local agencies to adopt the model rules (but not necessarily the comments) by regulation or ordinance. The act provides that local agencies should consult the model rules when establishing local ordinances implementing the act. RCW 42.56.570(4). The act further provides that public records officer training must be consistent with the model rules. RCW 42.56.152(3).

The act applies to all state agencies and local units of government. The model rules use the term "agency" to refer to either a state or local agency. Upon adoption, each agency would change that term to name itself (such as changing references from "name of agency" to "city"). To assist state and local agencies considering adopting the model rules, an electronic version of the rules is available on the attorney general's web site, ((www.atg.wa.gov/records/modelrules)) http://www.atg.wa.gov/model-rules-public-disclosure.

The initial model rules ((are)) in 2006-2007 were the product of an extensive outreach project. The attorney general held thirteen public forums all across the state to obtain the views of requestors and agencies. Many requestors and agencies also provided detailed written comments ((that are contained in the rule-making file)). The model rules reflect many of the points and concerns presented in those forums. For the model rules updates in 2017, the attorney general considered case law and legislative developments since 2006-2007. The attorney general sought additional comments from requestors, agencies, and others.

The model rules provide one approach (or, in some cases, alternate approaches) to processing public records requests. Agencies vary enormously in size, resources, and complexity of requests received. Any "one-size-fits-all" approach in the model rules, therefore, may not be best for requestors and agencies.1

((We are publishing)) The model rules are published with comments. The comments have five-digit WAC numbers such as WAC 44-14-04001. The model rules themselves have three-digit WAC numbers such as WAC 44-14-040.

The comments are designed to explain the basis and rationale for the rules themselves as well as provide broader context and legal guidance. To do so, the comments contain many citations to statutes, cases, and formal attorney ((general's)) general opinions.

The model rules, and the comments accompanying them, are advisory only and do not bind any agency. Accordingly, many of the comments to the model rules use the word "should" or "may" to describe what an agency or requestor is encouraged to do. The use of the words "should" or "may" are permissive, not mandatory, and are not intended to create any legal duty.

While the model rules and comments are nonbinding, they should be carefully considered by requestors and state agencies. ((The model rules and comments were adopted after extensive statewide hearings and voluminous comments from a wide variety of interested parties.)) Local agencies are required to consider them in establishing local ordinances implementing the act. RCW 42.56.570. The Washington courts have also considered the model rules in several appellate decisions.1

On July 1, 2006, the act ((will be recodified. Chapter 274, Laws of 2005. The act will be known as the "Public Records Act" and will be codified in chapter 42.56 RCW. The exemptions in the act are recodified and grouped together by topic.)) was recodified from chapter 42.17 to 42.56 RCW, and titled the "Public Records Act." The recodification ((does)) did not change substantive law. The initial model rules ((provide dual citations to the current act, chapter 42.17 RCW, and the newly codified act, chapter 42.56 RCW (for example, RCW 42.17.340/42.56.550))) and older court decisions referred to the prior codification numbers in chapter 42.17 RCW. A recodification conversion chart (from chapter 42.17 to 42.56 RCW) is on the attorney general's office web site at http://www.atg.wa.gov/model-rules-public-disclosure.

The act is complicated, and compliance requires training. ((Training can be the difference between a satisfied requestor and expensive litigation. The attorney general's office strongly encourages agencies to provide thorough and ongoing training to agency staff on public records compliance.)) Training on the act is required for local elected officials, statewide elected officials, persons appointed to fill vacancies in a local or statewide office, and public records officers. RCW 42.56.150; 42.56.152. Public records officers must also receive training on electronic records. RCW 42.56.152(5). All agency employees should receive basic training on public records compliance and records retention; public records officers should receive more intensive training. Agencies are encouraged to document training for persons required to receive training. The attorney general's office has training resources including sample training documentation forms available on its web site at http://www.atg.wa.gov/OpenGovernmentTraining.aspx. Training can be the difference between a satisfied requestor and expensive litigation. The courts can consider lack of training as a penalty factor in actions filed under RCW 42.56.550, the act's enforcement provision.1

Several web sites provide information on the act. The attorney general office's web site on public records is ((www.atg.wa.gov/records/deskbook.shtml)) http://www.atg.wa.gov/obtaining-records, which also includes a link to an Open Government Resource Manual. The municipal research and services center, an entity serving local governments, provides ((a)) public records ((handbook at www.mrsc.org/Publications/prdpub04.pdf)) resources on its web site at http://mrsc.org/Home.aspx. A requestor's organization, the Washington Coalition for Open Government, has materials on its web site at www.washingtoncog.org.

More materials are available from other organizations such as the Washington State Bar Association ((is publishing a twenty-two-chapter deskbook on public records in 2006. It will be available for purchase at www.wsba.org)).

(1) RCW ((42.17.260(1)/)) 42.56.070(1) requires each agency to make available for inspection and copying nonexempt "public records" in accordance with published rules. The act defines "public record" at RCW 42.56.010(3) to include any "writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained" by the agency. RCW 42.56.010(3) excludes from the definition of "public record" the records of volunteers that are not otherwise required to be retained by the agency and which are held by volunteers who do not serve in an administrative capacity; have not been appointed by the agency to an agency board, commission or internship; and do not have a supervisory role or delegated authority. RCW ((42.17.260(2)/)) 42.56.070(2) requires each agency to set forth "for informational purposes" every law, in addition to the Public Records Act, that exempts or prohibits the disclosure of public records held by that agency.

(2) The purpose of these rules is to establish the procedures (name of agency) will follow in order to provide full access to public records. These rules provide information to persons wishing to request access to public records of the (name of agency) and establish processes for both requestors and (name of agency) staff that are designed to best assist members of the public in obtaining such access.

(3) The purpose of the act is to provide the public full access to information concerning the conduct of government, mindful of individuals' privacy rights and the desirability of the efficient administration of government. The act and these rules will be interpreted in favor of disclosure. In carrying out its responsibilities under the act, the (name of agency) will be guided by the provisions of the act describing its purposes and interpretation.

The act applies to an "agency." RCW ((42.17.260(1)/)) 42.56.070(1). "'Agency' includes all state agencies and all local agencies. 'State agency' includes every state office, department, division, bureau, board, commission, or other state agency. 'Local agency' includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency." RCW ((42.17.020(2))) 42.56.010(1).

Court ((files and)) records, judges' files, and the records of judicial branch agencies are not subject to the act.1 Access to these records is governed by court rules and common law. The model rules, therefore, do not address access to court or judicial branch records.

An entity which is not an "agency" can still be subject to the act when it is the functional equivalent of an agency. Courts have applied a four-factor, case-by-case test. The factors are:

(1) Whether the entity performs a government function;

(2) The level of government funding;

(3) The extent of government involvement or regulation; and

(4) Whether the entity was created by the government((. Op. Att'y Gen. 2 (2002))).2

Some agencies, most notably counties, are a collection of separate quasi-autonomous departments which are governed by different elected officials (such as a county assessor and prosecuting attorney). The act includes a county "office" as an agency. RCW 42.56.010(1). However, the act ((defines)) also includes the county as a whole as an "agency" subject to the act. ((RCW 42.17.020(2). An agency should coordinate responses to records requests across departmental lines. RCW 42.17.253(1))) Id. Therefore, some counties may have one public records officer for the entire county; others may have public records officers for each county official or department. The act does not require a public agency that has a records request directed to it to coordinate its response with other public agencies.3 Regardless, public records officers must be publicly identified. RCW 42.56.580 (2) and (3) (agency's public records officer must "oversee the agency's compliance" with act).

The act provides: "Agencies shall adopt and enforce reasonable rules and regulations… to provide full public access to public 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." RCW ((42.17.290/)) 42.56.100. Therefore, an agency must adopt "reasonable" regulations providing for the "fullest assistance" to requestors and the "most timely possible action on requests."1

At the same time, an agency's regulations must "protect public records from damage or disorganization" and "prevent excessive interference" with other essential agency functions. Another provision of the act states that providing public records should not "unreasonably disrupt the operations of the agency." RCW ((42.17.270/)) 42.56.080. This provision allows an agency to take reasonable precautions to prevent a requestor from being unreasonably disruptive or disrespectful to agency staff.

The act declares: "The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created." RCW ((42.17.251/)) 42.56.030. The initiative creating the act further provides: "… mindful of the right of individuals to privacy and of the desirability of the efficient administration of government, full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society." RCW ((42.17.010(11))) 42.17A.001(11). The act further provides: "Courts shall take into account the policy of (the act) 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." RCW ((42.17.340(3)/)) 42.56.550(3).

Because the purpose of the act is to allow people to be informed about governmental decisions (and therefore help keep government accountable) while at the same time being "mindful of the right of individuals to privacy," it should not be used to obtain records containing purely personal information that has absolutely no bearing on the conduct of government.1

The act emphasizes ((three separate times)) that it must be liberally construed to effect its purpose, which is the disclosure of nonexempt public records. RCW ((42.17.010, 42.17.251/)) 42.56.030((, 42.17.920.1)). The act places the burden on the agency of proving a record is not subject to disclosure, or that its estimate of time to provide a ((full)) response ((is)) or its estimated copy charges are "reasonable." RCW ((42.17.340 (1) and (2)/)) 42.56.550 (1) and (2). The act also encourages disclosure by awarding a prevailing requestor reasonable attorneys' fees, costs, and a possible daily penalty if the agency fails to meet its burden of proving the record is not subject to disclosure, or its estimate of time, or its estimate of copying costs, is not "reasonable." RCW ((42.17.340(4)/)) 42.56.550(4).

An additional incentive for disclosure is RCW ((42.17.258)) 42.56.060, which provides: "No public agency, public official, public employee, or custodian shall be liable, nor shall a cause of action exist, for any loss or damage based upon the release of a public record if the public agency, public official, public employee, or custodian acted in good faith in attempting to comply" with the act.

(1) The (name of agency) (describe services provided by agency). The (name of agency's) central office is located at (describe). The (name of agency) has field offices at (describe, if applicable).

(2) Any person wishing to request access to public records of (agency), or seeking assistance in making such a request should contact the public records officer of the (name of agency):

Public Records Officer

(Agency)

(Address)

(Telephone number)

(fax number if relevant)

(email)

Information is also available at the (name of agency's) web site at (web site address).

(3) The public records officer will oversee compliance with the act but another (name of agency) staff member may process the request. Therefore, these rules will refer to the public records officer "or designee." The public records officer or designee and the (name of agency) will provide the "fullest assistance" to requestors; create and maintain for use by the public and (name of agency) officials an index to public records of the (name of agency, if applicable); ensure that public records are protected from damage or disorganization; and prevent fulfilling public records requests from causing excessive interference with essential functions of the (name of agency).

An agency must publish its public records policies, organizational information, and methods for requestors to obtain public records. RCW ((42.17.250(1)/)) 42.56.040(1).1 A state agency must publish its procedures in the Washington Administrative Code and a local agency must prominently display and make them available at the central office of such local agency. RCW ((42.17.250(1)/)) 42.56.040(1). An agency should post its public records rules on its web site. An agency cannot invoke a procedure if it did not publish or display it as required (unless the party had actual and timely notice of its contents). RCW ((42.17.250(2)/)) 42.56.040(2).

An agency must appoint a public records officer whose responsibility is to serve as a "point of contact" for members of the public seeking public records. RCW ((42.17.253(1))) 42.56.580(1). The purpose of this requirement is to provide the public with one point of contact within the agency to make a request. A state agency must provide the public records officer's name and contact information by publishing it in the state register. RCW 42.56.580(2). A state agency is encouraged to provide the public records officer's contact information on its web site. A local agency must publish the public records officer's name and contact information in a way reasonably calculated to provide notice to the public, such as posting it on the agency's web site. RCW ((42.17.253(3))) 42.56.580(3).

The public records officer is not required to personally fulfill requests for public records. A request can be fulfilled by an agency employee other than the public records officer. If the request is made to the public records officer, but should actually be fulfilled by others in the agency, the public records officer should route the request to the appropriate person or persons in the agency for processing. An agency is not required to hire a new staff member to be the public records officer.

(1) Hours for inspection of records. Public records are available for inspection and copying during normal business hours of the (name of agency), (provide hours, e.g., Monday through Friday, 8:00 a.m. to 5:00 p.m., excluding legal holidays). Records must be inspected at the offices of the (name of agency). Many public records are also available for inspection and copying on the (name of agency's) web site at any time, at no cost.

(2) Records index. (If agency keeps an index.) An index of public records is available for use by members of the public, including (describe contents). The index may be accessed online at (web site address). (If there are multiple indices, describe each and its availability.)

(If agency is local agency opting out of the index requirement.) The (name of agency) finds that maintaining an index is unduly burdensome and would interfere with agency operations. The requirement would unduly burden or interfere with (name of agency) operations in the following ways (specify reasons).

(3) Organization of records. The (name of agency) will maintain its records in a reasonably organized manner. The (name of agency) will take reasonable actions to protect records from damage and disorganization. A requestor shall not take (name of agency) records from (name of agency) offices without the permission of the public records officer or designee. A variety of records is available on the (name of agency) web site at (web site address). Requestors are encouraged to view the documents available on the web site prior to submitting a records request.

(4) Making a request for public records.

(a) Any person wishing to inspect or copy public records of the (name of agency) should make the request in writing on the (name of agency's) request form or through an online portal, or by letter, fax (if the agency uses fax), or email addressed to the public records officer at the email address publicly designated by (name of agency), or by submitting the request in person at (name of agency and address) and including the following information:

• Name of requestor;

• Address of requestor;

• Other contact information, including telephone number and any email address;

• Identification of the public records adequate for the public records officer or designee to locate the records; and

• The date and time of day of the request.

(b) If the requestor wishes to have copies of the records made instead of simply inspecting them, he or she should so indicate and make arrangements to pay for copies of the records or a deposit. Pursuant to section (insert section), ((standard photocopies will be provided at (amount) cents per page)) charges for copies are provided in a fee schedule available at (agency office location and web site address).

(c) A records request form is available for use by requestors at the office of the public records officer and online at (web site address).

(d) The public records officer or designee may accept requests for public records that contain the above information by telephone or in person. If the public records officer or designee accepts such a request, he or she will confirm receipt of the information and the substance of the request in writing.

For most public records, the courts use a three-part test to determine if a record is a "public record." The document must be: A "writing," containing information "relating to the conduct of government" or the performance of any governmental or proprietary function, "prepared, owned, used, or retained" by an agency.((1)) Effective July 23, 2017, records of certain volunteers are excluded from the definition. RCW 42.56.010(3) (chapter 303, Laws of 2017).

(1) Writing. A "public record" can be any writing "regardless of physical form or characteristics." RCW ((42.17.020(41))) 42.56.010(3). "Writing" is defined very broadly as: "… handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation((,)) including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated." RCW ((42.17.020(48))) 42.56.010(4). An email ((is a "writing)), text, social media posting and database are therefore also "writings."

(2) Relating to the conduct of government. To be a "public record," a document must relate to the "conduct of government or the performance of any governmental or proprietary function." RCW ((42.17.020(41))) 42.56.010(3).1 Almost all records held by an agency relate to the conduct of government; however, some do not. A purely personal record having absolutely no relation to the conduct of government is not a "public record." Even though a purely personal record might not be a "public record," a record of its existence might be if its existence was used for a governmental purpose.2 For example, a record showing the existence of a purely personal email sent by an agency employee on an agency computer would probably be a "public record," even if the contents of the email itself were not.((2)) 3

(3) "Prepared, owned, used, or retained." A "public record" is a record "prepared, owned, used, or retained" by an agency. RCW ((42.17.020(41))) 42.56.010(3).

A record can be "used" by an agency even if the agency does not actually possess the record. If an agency uses a record in its decision-making process it is a "public record."((3)) 4 For example, if an agency considered technical specifications of a public works project and returned the specifications to the contractor in another state, the specifications would be a "public record" because the agency "used" the document in its decision-making process.((4)) 5 The agency could be required to obtain the public record, unless doing so would be impossible. An agency cannot send its only copy of a public record to a third party for the sole purpose of avoiding disclosure.((5)) 6

Sometimes agency employees or officials may work on agency business from home computers((. These home computer)) or on other personal devices, or from nonagency accounts (such as a nonagency email account), creating and storing agency records on those devices or in those accounts. When the records are prepared, owned, used or retained within the scope of the employee's or official's employment, those records (including emails, texts and other records) were "used" by the agency and relate to the "conduct of government" so they are "public records."7 RCW ((42.17.020(41))) 42.56.010(3). However, the act does not authorize unbridled searches of agency property.((6)) 8 If agency property is not subject to unbridled searches, then neither is the home computer, or personal device or personal account of an agency employee or official. Yet, because the ((home computer documents)) records relating to agency business are "public records," they are subject to disclosure (unless exempt). Agencies should instruct employees and officials that all public records, regardless of where they were created, should eventually be stored on agency computers. Agencies should ask employees and officials to keep agency-related documents with any retention requirements on home computers or personal devices in separate folders ((and)) temporarily, until they are provided to the agency. An agency could also require an employee or official to routinely blind carbon copy ("bcc") work emails in a personal account back to ((the employee's)) an agency email account. If the agency receives a request for records that are located solely on employees' or officials' home computers or personal devices, or in personal accounts, the agency should direct the ((employee)) individual to ((forward)) search for and provide any responsive documents ((back)) to the agency, and the agency should process the request as it would if the records were on the agency's computers((.)) or in agency-owned devices or accounts. The agency employee or official may be required by the agency to sign an affidavit describing the nature and extent of his or her search for and production of responsive public records located on a home computer or personal device, or in a nonagency account, and a description of personal records not provided with sufficient facts to show the records are not public records.9

An agency must make records available for inspection and copying during the "customary office hours of the agency." RCW ((42.17.280/)) 42.56.090. If the agency is very small and does not have customary office hours of at least thirty hours per week, and while the act does not specify a particular schedule, making the records ((must be)) available from 9:00 a.m. to noon, and 1:00 p.m. to 4:00 p.m. satisfies the thirty-hour requirement. The agency and requestor can make mutually agreeable arrangements for the times of inspection and copying.

State and local agencies are required by RCW ((42.17.260/)) 42.56.070 to provide an index for certain categories of records. An agency is not required to index every record it creates. Since agencies maintain records in a wide variety of ways, agency indices will also vary. An agency cannot use, rely on, or cite to as precedent a public record unless it was indexed or made available to the parties affected by it. RCW ((42.17.260(6)/)) 42.56.070(6). An agency should post its index on its web site.

The index requirements differ for state and local agencies.

A state agency must index only two categories of records:

(1) All records, if any, issued before July 1, 1990 for which the agency has maintained an index; and

(2) Final orders, declaratory orders, interpretive statements, and statements of policy issued after June 30, 1990. RCW ((42.17.260(5)/)) 42.56.070(5).

A state agency must adopt a rule governing its index.

A local agency may opt out of the indexing requirement if it issues a formal order specifying the reasons why doing so would "unduly burden or interfere with agency operations." RCW ((42.17.260 (4)(a)/)) 42.56.070 (4)(a). To lawfully opt out of the index requirement, a local agency must actually issue an order or adopt an ordinance specifying the reasons it cannot maintain an index.

The index requirements of the act were enacted in 1972 when agencies had far fewer records, the vast majority of records were paper, and an index was easier to maintain. However, technology allows agencies to map out, archive, and then electronically search for electronic documents. Agency resources vary greatly so not every agency can afford to utilize this technology. However, agencies should explore the feasibility of electronic indexing and retrieval to assist both the agency and requestor in locating public records. Agencies could also consider using their records retention schedules as their index, or direct requestors to the schedules as a way to describe the types of records an agency retains and for what periods of time. See chapter 40.14 RCW and WAC 44-14-03005.

An agency must "protect public records from damage or disorganization." RCW ((42.17.290/)) 42.56.100. An agency owns public records (subject to the public's right, as defined in the act, to inspect or copy nonexempt records) and must maintain custody of them. RCW 40.14.020; chapter 434-615 WAC. An agency's information "must be managed with great care to meet the objectives of citizens and their governments." RCW 43.105.351. Therefore, an agency should not allow a requestor to take original agency records out of the agency's office, or alter or damage an original record. An agency may send original records to a reputable commercial copying center to fulfill a records request if the agency takes reasonable precautions to protect the records. See WAC 44-14-07001(5).1

The legislature encourages agencies to electronically store and provide public records:

Broad public access to state and local government records and information has potential for expanding citizen access to that information and for providing government services. Electronic methods of locating and transferring information can improve linkages between and among citizens((...and)), organizations, business, and governments. Information must be managed with great care to meet the objectives of citizens and their governments. ((...))

It is the intent of the legislature to encourage state and local governments to develop, store, and manage their public records and information in electronic formats to meet their missions and objectives. Further, it is the intent of the legislature for state and local governments to set priorities for making public records widely available electronically to the public.

RCW ((43.105.250)) 43.105.351. An agency could fulfill its obligation to provide "access" to a public record by providing a requestor with a link to an agency web site containing an electronic copy of that record. RCW 42.56.520. Agencies are encouraged to do so, and requestors are encouraged to access records posted online in order to preserve taxpayer resources.2 For those requestors without access to the internet, an agency ((could provide a)) is to provide copies or allow the requestor to view copies using an agency computer terminal at its office. RCW 42.56.520.

An agency is not required to retain every record it ever created or used. The state and local records committees approve a general retention schedule for state and local agency records that applies to records that are common to most agencies.1 Individual agencies seek approval from the state or local records committee for retention schedules that are specific to their agency, or that, because of particular needs of the agency, must be kept longer than provided in the general records retention schedule. The retention schedules for state and local agencies are available at ((www.secstate.wa.gov/archives/gs.aspx)) www.sos.wa.gov/archives/ (select "Records Management").

Retention schedules vary based on the content of the record. For example, documents with no value such as internal meeting scheduling emails can be destroyed when no longer needed, but documents such as periodic accounting reports must be kept for a period of years. Because different kinds of records must be retained for different periods of time, an agency is prohibited from automatically deleting all emails after a short period of time (such as thirty days). While many of the emails (like other public records) could be destroyed when no longer needed, many others must be retained for several years. Indiscriminate automatic deletion of all emails or other public records after a short period no matter what their content may prevent an agency from complying with its retention duties and could complicate performance of its duties under the Public Records Act. An agency should have a retention policy in which employees save retainable documents and delete nonretainable ones. An agency is strongly encouraged to train employees on retention schedules. Public records officers must receive training on retention of electronic records. RCW 42.56.152(5).

The lawful destruction of public records is governed by retention schedules. The unlawful destruction of public records can be a crime. RCW 40.16.010 and 40.16.020.

An agency is prohibited from destroying a public record, even if it is about to be lawfully destroyed under a retention schedule, if a public records request has been made for that record. RCW ((42.17.290/)) 42.56.100. Additional retention requirements might apply if the records may be relevant to actual or anticipated litigation. The agency is required to retain the record until the record request has been resolved. An exception exists for certain portions of a state employee's personnel file. RCW ((42.17.295/)) 42.56.110.

There is no statutorily required format for a valid public records request.((1)) RCW 42.56.080(2). Agencies may recommend that requestors submit requests using an agency-provided form or web page. However, a person seeking records must make a "specific request" for "identifiable records" which provides "fair notice" and "sufficient clarity" that it is a records request.1 An agency may prescribe the means of requests in its rules. RCW 42.56.040; RCW 42.56.070(1); RCW 42.56.100; RCW 34.05.220 (1)(b) (state agencies). An agency can adopt reasonable procedures requiring requests to be submitted only to designated persons2 (such as the public records officer), or a specific agency address (such as a dedicated agency email address for receiving requests, or a mailing/street address of the office where the public records officer is located).

Mail, email and fax requests. A request can be sent ((in)) to the appropriate person or address by U.S. mail. RCW ((42.17.290/)) 42.56.100. A request can also be made by email, fax (if an agency still uses fax), or orally((. A request should be made to the agency's public records officer. An agency may prescribe means of requests in its rules. RCW 42.17.250/42.56.040 and 42.17.260(1)/42.56.070(1); RCW 34.05.220 (state agencies))) (but should then be confirmed in writing; see further comment herein).

Public records requests using the agency's form or web page. An agency should have a public records request form. An agency is encouraged to make its public records request form available at its office, and on its web site((.

An agency should have a public records request form)). Some agencies also have online public records request forms or portals on a page on their web sites, set up to specifically receive public records requests. Agencies may recommend that requestors submit requests using an agency-provided form or web page. RCW 42.56.080(2). In this comment, requestors are strongly encouraged to use the agency's public records request form or online form or portal to make records requests, and then provide it to the designated agency person or address. Following this step begins the important communication process under the act between the requestor and the agency.3 This step also helps both the requestor and the agency, because it better enables the agency to more promptly identify the inquiry as a public records request, timely confirm its receipt with the requestor, promptly seek clarification from the requestor if needed, and otherwise begin processing the agency's response to the request under the act.

An agency request form or online form or portal should ask the requestor whether he or she seeks to inspect the records, receive a copy of them, or to inspect the records first and then consider selecting records to copy. An agency request form or online portal should recite that inspection of records is free and provide ((the per-page charge for standard photocopies)) information about copying fees.

An agency request form or online form or portal should require the requestor to provide contact information so the agency can communicate with the requestor to, for example, clarify the request, inform the requestor that the records are available, or provide an explanation of an exemption. Contact information such as a name, phone number, and address or email should be provided. Requestors should provide an email address because it is an efficient means of communication and creates a written record of the communications between them and the agency. An agency should not require a requestor to provide a driver's license number, date of birth, or photo identification. This information is not necessary for the agency to contact the requestor and requiring it might intimidate some requestors.

Prioritization of records requested. An agency may ask a requestor to prioritize the records he or she is requesting so that the agency is able to provide the most important records first. An agency is not required to ask for prioritization, and a requestor is not required to provide it.

Purpose of request. An agency cannot require the requestor to disclose the purpose of the request ((with two)), apart from exceptions permitted by law. RCW ((42.17.270/)) 42.56.080. ((First)) For example, if the request is for a list of individuals, an agency may ask the requestor if he or she intends to use the records for a commercial purpose and require the requestor to provide information about the purpose of the use of the list.((2)) 5 An agency should specify on its request form that the agency is not authorized to provide public records consisting of a list of individuals for a commercial use. RCW ((42.17.260(9)/)) 42.56.070(9).

((Second)) And, an agency may seek information sufficient to allow it to determine if another statute prohibits disclosure. For example, some statutes allow an agency to disclose a record only to ((a claimant for benefits or his or her representative)) identified persons. In such cases, an agency is authorized to ask the requestor if he or she fits ((this criterion)) the statutory criteria for disclosure of the record.

Indemnification. An agency is not authorized to require a requestor to indemnify the agency. ((Op. Att'y Gen. 12 (1988).3))6

(1) Providing "fullest assistance." The (name of agency) is charged by statute with adopting rules which provide for how it will "provide full access to public records," "protect records from damage or disorganization," "prevent excessive interference with other essential functions of the agency," provide "fullest assistance" to requestors, and provide the "most timely possible action" on public records requests. The public records officer or designee will process requests in the order allowing the most requests to be processed in the most efficient manner.

(((2))) (a) Upon receipt of a request, the (name of agency) will assign it a tracking number and log it in.

(4) Acknowledging receipt of request. Following the initial evaluation of the request under (2) and (3) of this subsection, and within five business days1 of receipt of the request, the public records officer will do one or more of the following, depending upon the category assigned to the request:

(a) Make the records available for inspection or copying((;

(b))) including:

(ii) If copies are requested and payment of a deposit for the copies, if any, is made or other terms of payment are agreed upon, send the copies to the requestor;

(((c))) (b) Acknowledge receipt of the request and provide a reasonable estimate of when records or an installment of records will be available (the public records officer or designee may revise the estimate of when records will be available); or

(((d) If the request is unclear or does not sufficiently identify the requested records, request clarification from the requestor.)) (c) Acknowledge receipt of the request and ask the requestor to provide clarification for a request that is unclear, and provide, to the greatest extent possible, a reasonable estimate of time the (name of agency) will require to respond to the request if it is not clarified.

(i) Such clarification may be requested and provided by telephone((. The public records officer or designee may revise the estimate of when records will be available)), and memorialized in writing;

(ii) If the requestor fails to respond to a request for clarification and the entire request is unclear, the (name of agency) need not respond to it. The (name of agency) will respond to those portions of a request that are clear; or

(((e))) (d) Deny the request.

(((3))) (5) Consequences of failure to respond. If the (name of agency) does not respond in writing within five business days of receipt of the request for disclosure, the requestor should ((consider contacting)) contact the public records officer to determine the reason for the failure to respond.

(((4))) (6) Protecting rights of others. In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the public records officer may, prior to providing the records, give notice to such others whose rights may be affected by the disclosure. Such notice should be given so as to make it possible for those other persons to contact the requestor and ask him or her to revise the request, or, if necessary, seek an order from a court to prevent or limit the disclosure. The notice to the affected persons will include a copy of the request.

(((5))) (7) Records exempt from disclosure. Some records are exempt from disclosure, in whole or in part. If the (name of agency) believes that a record is exempt from disclosure and should be withheld, the public records officer will state the specific exemption and provide a brief written explanation of why the record or a portion of the record is being withheld. If only a portion of a record is exempt from disclosure, but the remainder is not exempt, the public records officer will redact the exempt portions, provide the nonexempt portions, and indicate to the requestor why portions of the record are being redacted.

(((6))) (8) Inspection of records.

(a) Consistent with other demands, the (name of agency) shall promptly provide space to inspect public records. No member of the public may remove a document from the viewing area or disassemble or alter any document. The requestor shall indicate which documents he or she wishes the agency to copy.

(b) The requestor must claim or review the assembled records within thirty days of the (name of agency's) notification to him or her that the records are available for inspection or copying. The agency will notify the requestor in writing of this requirement and inform the requestor that he or she should contact the agency to make arrangements to claim or review the records. If the requestor or a representative of the requestor fails to claim or review the records within the thirty-day period or make other arrangements, the (name of agency) may close the request and refile the assembled records. Other public records requests can be processed ahead of a subsequent request by the same person for the same or almost identical records, which can be processed as a new request.

(((7))) (9) Providing copies of records. After inspection is complete, the public records officer or designee shall make the requested copies or arrange for copying. Where (name of agency) charges for copies, the requestor must pay for the copies.

(((8))) (10) Providing records in installments. When the request is for a large number of records, the public records officer or designee will provide access for inspection and copying in installments, if he or she reasonably determines that it would be practical to provide the records in that way. If, within thirty days, the requestor fails to inspect the entire set of records or one or more of the installments, the public records officer or designee may stop searching for the remaining records and close the request.

(((9))) (11) Completion of inspection. When the inspection of the requested records is complete and all requested copies are provided, the public records officer or designee will indicate that the (name of agency) has completed a ((diligent)) reasonable search for the requested records and made any located nonexempt records available for inspection.

(((10))) (12) Closing withdrawn or abandoned request. When the requestor either withdraws the request, or fails to clarify an entirely unclear request, or fails to fulfill his or her obligations to inspect the records ((or)), pay the deposit, pay the required fees for an installment, or make final payment for the requested copies, the public records officer will close the request and indicate to the requestor that the (name of agency) has closed the request.

(((11))) (13) Later discovered documents. If, after the (name of agency) has informed the requestor that it has provided all available records, the (name of agency) becomes aware of additional responsive documents existing at the time of the request, it will promptly inform the requestor of the additional documents and provide them on an expedited basis.

Both requestors and agencies have responsibilities under the act. The public records process can function properly only when both parties perform their respective responsibilities. An agency has a duty to promptly provide access to all nonexempt public records.1 A requestor has a duty to give fair notice that he or she is making a records request, request identifiable records,2 follow the agency's reasonable procedures, inspect the assembled records or pay for the copies, and be respectful to agency staff.((2)) Both the agency and the requestor have a responsibility to communicate with each other when issues arise concerning a request.3

Requestors should keep in mind that all agencies have essential functions in addition to providing public records. Agencies also have greatly differing resources. The act recognizes that agency public records procedures should prevent "excessive interference" with the other "essential functions" of the agency. RCW ((42.17.290/)) 42.56.100. Therefore, while providing public records is an essential function of an agency, it is not required to abandon its other, nonpublic records functions. Agencies without a full-time public records officer may assign staff part-time to fulfill records requests, provided the agency is providing the "fullest assistance" and the "most timely possible" action on the request. The proper level of staffing for public records requests will vary among agencies, considering the complexity and number of requests to that agency, agency resources, and the agency's other functions.

The burden of proof is on an agency to prove its estimate of time to provide a full response is "reasonable." RCW ((42.17.340(2)/)) 42.56.550(2). An agency should be prepared to explain how it arrived at its estimate of time and why the estimate is reasonable.

Agencies are encouraged to use technology to provide public records more quickly and, if possible, less expensively. An agency is allowed, of course, to do more for the requestor than is required by the letter of the act. Doing so often saves the agency time and money in the long run, improves relations with the public, and prevents litigation. For example, agencies are encouraged to post many nonexempt records of broad public interest on the internet. This may result in fewer requests for public records. See RCW ((43.105.270 (state)) chapter 69, Laws of 2010 (agencies encouraged to post frequently sought documents on the internet); RCW 43.105.351 (legislative intent that agencies prioritize making records widely available electronically to the public).

(1) ((Reasonable)) Fair notice that request is for public records. A requestor must give an agency ((reasonable)) fair notice that the request is being made pursuant to the act. Requestors are encouraged to cite or name the act but are not required to do so.1 A request using the agency's request form or online request form or portal, or using the terms "public records," "public disclosure," "FOIA," or "Freedom of Information Act" (the terms commonly used for federal records requests), especially in the subject line of an email or letter, is recommended. The request should be directed to the agency-designated person to receive requests (such as the public records officer) or the agency-designated address for public records requests, which should provide an agency with ((reasonable)) fair notice in most cases. A requestor should not submit a "stealth" request, which is buried in another document in an attempt to trick the agency into not responding.

(2) Identifiable record. A requestor must request an "identifiable record" or "class of records" before an agency must respond to it. RCW ((42.17.270/)) 42.56.080 and ((42.17.340(1)/)) 42.56.550(1).

An "identifiable record" is one that is existing at the time of the request and which agency staff can reasonably locate.((2)) The act does not require agencies to be "mind readers" and to guess what records are being requested.2 The act does not allow a requestor to make "future" or "standing" (ongoing) requests for records not in existence; nonexistent records are not "identifiable."3

A request for all or substantially all records prepared, owned, used or retained by an agency is not a valid request for identifiable records, provided that a request for all records regarding a particular topic or containing a particular keyword or name shall not be considered a request for all of an agency's records. RCW 42.56.080(1). A "keyword" must have some meaning that reduces a request from all or substantially all of an agency's records. For example, a request seeking any and all records from the department of ecology which contain the word "ecology" is not a request containing a keyword. The word "ecology" is likely on every agency letterhead, email signature block, notice, order, brochure, form, pleading and virtually every other agency document. A request for all of an agency's emails can encompass substantially all of an agency's records, and such a request contains no keywords. The act does not allow a requestor nor require an agency to search through agency files for records which cannot be reasonably identified or described to the agency.((3))4 It benefits both the requestor and the agency when the request includes terms that are for identifiable records actually sought by the requestor, and which produce meaningful search results by the agency.

However, a requestor is not required to identify the exact record he or she seeks. For example, if a requestor requested an agency's "2001 budget," but the agency only had a 2000-2002 budget, the requestor made a request for an identifiable record.((4)) 5

An "identifiable record" is not a request for "information" in general.((5)) 6 For example, asking "what policies" an agency has for handling discrimination complaints is merely a request for "information."6 A request to inspect or copy an agency's policies and procedures for handling discrimination complaints would be a request for an "identifiable record."

Public records requests are not interrogatories (questions). An agency is not required to answer questions about records, or conduct legal research for a requestor.7 A request for "any law that allows the county to impose taxes on me" is not a request for an identifiable record. Conversely, a request for "all records discussing the passage of this year's tax increase on real property" is a request for an "identifiable record."

When a request uses an inexact phrase such as all records "relating to" a topic (such as "all records relating to the property tax increase"), the agency may interpret the request to be for records which directly and fairly address the topic. When an agency receives a "relating to" or similar request, it should seek clarification of the request from the requestor or explain how the agency is interpreting the requestor's request.

(3) "Overbroad" requests. An agency cannot "deny a request for identifiable public records based solely on the basis that the request is overbroad." RCW ((42.17.270/)) 42.56.080. However, if such a request is not for identifiable records or otherwise is not proper, the request can still be denied. When confronted with a request that is unclear, an agency should seek clarification.

(1) Similar treatment and purpose of the request. The act provides: "Agencies shall not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose for the request" (except to determine if the request is seeking a list of individuals for a commercial use or would violate another statute prohibiting disclosure or restricting disclosure to only certain persons). RCW ((42.17.270/)) 42.56.080.1 The act also requires an agency to take the "most timely possible action on requests" and make records "promptly available." RCW ((42.17.290/)) 42.56.100 and ((42.17.270/)) 42.56.080. However, treating requestors similarly does not mean that agencies must process requests strictly in the order received because this might not be providing the "most timely possible action" for all requests. A relatively simple request need not wait for a long period of time while a much larger or more complex request is being fulfilled. Agencies are encouraged to be flexible and process as many requests as possible even if they are out of order.((3))

(2) Purpose of request. An agency cannot require a requestor to state the purpose of the request (with limited exceptions). RCW ((42.17.270/)) 42.56.080. However, in an effort to better understand the request and provide all responsive records, the agency can inquire about the purpose of the request. The requestor is not required to answer the agency's inquiry (with limited exceptions as previously noted).

(((2))) (3) Provide "fullest assistance" and "most timely possible action." The act requires agencies to adopt and enforce reasonable rules to provide for the "fullest assistance" to a requestor. RCW ((42.17.290/)) 42.56.100. The "fullest assistance" principle should guide agencies when processing requests. In general, an agency should devote sufficient staff time to processing records requests, consistent with the act's requirement that fulfilling requests should not be an "excessive interference" with the agency's "other essential functions." RCW ((42.17.290/)) 42.56.100. The agency should recognize that fulfilling public records requests is one of the agency's duties, along with its others.

The act also requires agencies to adopt and enforce rules to provide for the "most timely possible action on requests." RCW ((42.17.290/)) 42.56.100. This principle should guide agencies when processing requests. It should be noted that this provision requires the most timely "possible" action on requests. This recognizes that an agency is not always capable of fulfilling a request as quickly as the requestor would like.

(((3))) (4) Communicate with requestor. Communication is usually the key to a smooth public records process for both requestors and agencies.3 Clear requests for a small number of records usually do not require predelivery communication with the requestor. However, when an agency receives a large or unclear request, the agency should communicate with the requestor to clarify the request. If a requestor asks for a summary of applicable charges before any copies are made, an agency must provide it. RCW 42.56.120 (2)(f). The requestor may then revise the request to reduce the number of requested copies. If the request is clarified or modified orally, the public records officer or designee should memorialize the communication in writing.

For large requests, the agency may ask the requestor to prioritize the request so that he or she receives the most important records first. If feasible, the agency should provide periodic updates to the requestor of the progress of the request. Similarly, the requestor should periodically communicate with the agency and promptly answer any clarification questions. Sometimes a requestor finds the records he or she is seeking at the beginning of a request. If so, the requestor should communicate with the agency that the requested records have been provided and that he or she is canceling the remainder of the request. If the requestor's cancellation communication is not in writing, the agency should confirm it in writing.

(((4))) (5) Failure to provide initial response within five business days. Within five business days of receiving a request, an agency must provide an initial response to requestor. The initial response must do one of four things:

(a) Provide the record;

(b) Acknowledge that the agency has received the request and provide a reasonable estimate of the time it will require to ((fully)) further respond;

(c) Seek a clarification of the request and if unclear, provide to the greatest extent possible a reasonable estimate of time the agency will require to respond to the request if it is not clarified; or

(d) Deny the request. RCW ((42.17.320/)) 42.56.520. An agency's failure to provide an initial response is arguably a violation of the act.((2)) 4

(((5))) (6) No duty to create records. An agency is not obligated to create a new record to satisfy a records request.((4)) 5 However, sometimes it is easier for an agency to create a record responsive to the request rather than collecting and making available voluminous records that contain small pieces of the information sought by the requestor or find itself in a controversy about whether the request requires the creation of a new record. The decision to create a new record is left to the discretion of the agency. With respect to databases, for example, there is not always a simple dichotomy between producing an existing record and creating a new record.6 In addition, an agency may decide to provide a customized service and if so, assess a customized service charge for the actual costs of staff technology expertise needed to prepare data compilations, or when such customized access services are not used by the agency for other business purposes. RCW 42.56.120.

If the agency is considering creating a new record instead of disclosing the underlying records, or creating new records from a database, it should obtain the consent of the requestor to ensure that the requestor is not actually seeking the underlying records, and describe any customized service charges that may apply.

Making an electronic copy of an electronic record is not "creating" a new record; instead, it is similar to copying a paper copy. If an agency translates a record into an alternative electronic format at the request of a requestor, the copy created does not constitute a new public record. RCW 42.56.120(1). Similarly, eliminating a field of an electronic record can be a method of redaction; it is ((similar to)) like redacting portions of a paper record using a black pen or white-out tape to make it available for inspection or copying. Scanning paper copies to make electronic copies is a method of copying paper records and does not create a new public record. RCW 42.56.120(1).

(((6))) (7) Provide a reasonable estimate of the time to fully respond. Unless it is providing the records or claiming an exemption from disclosure within the five-business day period, an agency must provide a reasonable estimate of the time it will take to ((fully)) respond to the request. RCW ((42.17.320/)) 42.56.520. ((Fully)) Responding can mean processing the request (locating and assembling records, redacting, preparing a withholding ((index)) log, making an installment available, or notifying third parties named in the records who might seek an injunction against disclosure) or determining if the records are exempt from disclosure.

An estimate must be "reasonable." The act provides a requestor a quick and simple method of challenging the reasonableness of an agency's estimate. RCW ((42.17.340(2)/)) 42.56.550(2). See WAC 44-14-08004 (5)(b). The burden of proof is on the agency to prove its estimate is "reasonable." RCW ((42.17.340(2)/)) 42.56.550(2).

To provide a "reasonable" estimate, an agency should not use the same estimate for every request. An agency should roughly calculate the time it will take to respond to the request and send estimates of varying lengths, as appropriate. It can consider if a request falls into a category it has defined for processing purposes. See subsection (1)(b) of this section. Some very large requests can legitimately take months or longer to fully provide. See WAC 44-14-040. There is no standard amount of time for fulfilling a request so reasonable estimates should vary.

Some agencies send form letters with thirty-day estimates to all requestors, no matter the size or complexity of the request. Form letter thirty-day estimates for every requestor, regardless of the nature of the request, are rarely "reasonable" because an agency, which has the burden of proof, could find it difficult to prove that every single request it receives would take the same thirty-day period.

While not required,7 in order to avoid unnecessary litigation over the reasonableness of an estimate, an agency ((should)) could briefly explain to the requestor the basis for the estimate in the initial response, including describing or referring to its processing categories. See WAC 44-14-040. The explanation need not be elaborate but should allow the requestor to make a threshold determination of whether he or she should question that estimate further or has a basis to seek judicial review of the reasonableness of the estimate.

An agency should either fulfill the request within the estimated time or, if warranted, communicate with the requestor about clarifications or the need for a revised estimate.8 An agency should not ignore a request and then continuously send extended estimates. Routine extensions with little or no action to fulfill the request would show that the previous estimates probably were not "reasonable." Extended estimates are appropriate when the circumstances have changed (such as an increase in other requests or discovering that the request will require extensive redaction). An estimate can be revised when appropriate, but unwarranted serial extensions have the effect of denying a requestor access to public records.

(((7))) (8) Seek clarification of a request or additional time. An agency may seek a clarification of an "unclear" or partially unclear request. RCW ((42.17.320/)) 42.56.520. An agency can only seek a clarification when the request is objectively "unclear." Seeking a "clarification" of an objectively clear request delays access to public records.

If the requestor fails to clarify an entirely unclear request, the agency need not respond to it further. RCW ((42.17.320/)) 42.56.520. However, an agency must respond to those parts of a request that are clear. If the requestor does not respond to the agency's request for a clarification within thirty days of the agency's request or other specified time, the agency may consider the request abandoned. If the agency considers the request abandoned, it should send a closing letter to the requestor if it has not already explained when it will close a request due to lack of response by the requestor.

An agency may take additional time to provide the records or deny the request if it is awaiting a clarification. RCW ((42.17.320/)) 42.56.520. After providing the initial response and perhaps even beginning to assemble the records, an agency might discover it needs to clarify a request and is allowed to do so. A clarification could also affect a reasonable estimate.

(((8))) (9) Preserving requested records. If a requested record is scheduled shortly for destruction, and the agency receives a public records request for it, the record cannot be destroyed until the request is resolved. RCW ((42.17.290/)) 42.56.100.((5)) 9 Once a request has been closed, the agency can destroy the requested records in accordance with its retention schedule.

(((9))) (10) Searching for records. An agency must conduct an objectively reasonable search for responsive records. The adequacy of a search is judged by the standard of reasonableness.10 A requestor is not required to "ferret out" records on his or her own.((6)) A reasonable agency search usually begins with the public records officer for the agency or a records coordinator for a department of the agency deciding where the records are likely to be and who is likely to know where they are. One of the most important parts of an adequate search is to decide how wide the search will be. If the agency is small, it might be appropriate to initially ask all agency employees and officials if they have responsive records. If the agency is larger, the agency may choose to initially ask only the staff of the department or departments of an agency most likely to have the records. For example, a request for records showing or discussing payments on a public works project might initially be directed to all staff in the finance and public works departments if those departments are deemed most likely to have the responsive documents, even though other departments may have copies or alternative versions of the same documents. Meanwhile, other departments that may have documents should be instructed to preserve their records in case they are later deemed to be necessary to respond to the request. The agency could notify the requestor which departments are being surveyed for the documents so the requestor may suggest other departments.

If agency employees or officials are using home computers, personal devices, or personal accounts to conduct agency business, those devices and accounts also need to be searched by the employees or officials who are using them when those devices and accounts may have responsive records.11 If an agency's contractors performing agency work have responsive public records of an agency as a consequence of the agency's contract, they should also be notified of the records request. It is better to be over inclusive rather than under inclusive when deciding which staff or others should be contacted, but not everyone in an agency needs to be asked if there is no reason to believe he or she has responsive records. An email to staff or agency officials selected as most likely to have responsive records is usually sufficient. Such an email also allows an agency to document whom it asked for records. Documentation of searches is recommended. The courts can consider the reasonableness of an agency's search when considering assessing penalties for an agency's failure to produce records.12

Agency policies should require staff and officials to promptly respond to inquiries about responsive records from the public records officer.

After records which are deemed potentially responsive are located, an agency should take reasonable steps to narrow down the number of records to those which are responsive. In some cases, an agency might find it helpful to consult with the requestor on the scope of the documents to be assembled. An agency cannot "bury" a requestor with nonresponsive documents. However, an agency is allowed to provide arguably, but not clearly, responsive records to allow the requestor to select the ones he or she wants, particularly if the requestor is unable or unwilling to help narrow the scope of the documents. If an agency does not find responsive documents, it should explain, in at least general terms, the places searched.13

(((10))) (11) Expiration of reasonable estimate. An agency should provide a record within the time provided in its reasonable estimate or communicate with the requestor that additional time is required to fulfill the request based on specified criteria. ((Unjustified failure to provide the record by the expiration of the estimate is a denial of access to the record)) A failure of an agency to meet its own internal deadline is not a violation of the act, assuming the agency is working diligently to respond to the request.14 Nevertheless, an agency should promptly communicate with a requestor when it determines its original estimate of time needs to be adjusted.

(((11))) (12) Notice to affected third parties. Sometimes an agency decides it must release all or a part of a public record affecting a third party. The third party can file an action to obtain an injunction to prevent an agency from disclosing it, but the third party must prove the record or portion of it is exempt from disclosure.((7)) RCW ((42.17.330/)) 42.56.540. 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.

The act provides that before releasing a record an agency may, at its "option," provide notice to a person named in a public record or to whom the record specifically pertains (unless notice is required by law). RCW ((42.17.330/)) 42.56.540.15 This would include all of those whose identity could reasonably be ascertained in the record and who might have a reason to seek to prevent the release of the record. An agency has wide discretion to decide whom to notify or not notify. First, an agency has the "option" to notify or not (unless notice is required by law). RCW ((42.17.330/)) 42.56.540. Second, if it acted in good faith, an agency cannot be held liable for its failure to notify enough people under the act. RCW ((42.17.258/)) 42.56.060. However, if an agency had a contractual obligation to provide notice of a request but failed to do so, the agency might lose the immunity provided by RCW ((42.17.258/)) 42.56.060 because breaching the agreement probably is not a "good faith" attempt to comply with the act.

The practice of many agencies is to give ten days' notice. Many agencies expressly indicate the deadline date on which it must receive a court order enjoining disclosure, to avoid any confusion or potential liability. More notice might be appropriate in some cases, such as when numerous notices are required, but every additional day of notice is another day the potentially disclosable record is being withheld. When it provides a notice, the agency should include in its calculation the notice period in the "reasonable estimate" of time it provides to a requestor.

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.

(((12))) (13) Later discovered records. If the agency becomes aware of the existence of records responsive to a request which were not provided, the agency should notify the requestor in writing, and provide a brief explanation of the circumstances, and provide the nonexempt records with a written explanation of any redacted or withheld records.

(14) Maintaining a log. Effective July 23, 2017, the agency must maintain a log of public records requests to include the identity of the requestor if provided by the requestor, the date the request was received, the text of the original request, a description of the records redacted or withheld and the reasons therefor, the date of the final disposition of the request. Section 6, chapter 303, Laws of 2017 (to be codified in chapter 40.14 RCW).

(1) General. An agency may simply provide the records or make them available within the five-business day period of the initial response. When it does so, an agency should also provide the requestor a written cover letter or email briefly describing the records provided and informing the requestor that the request has been closed. This assists the agency in later proving that it provided the specified records on a certain date and told the requestor that the request had been closed. However, a cover letter or email might not be practical in some circumstances, such as when the agency provides a small number of records or fulfills routine requests.

An agency can, of course, provide the records sooner than five business days. Providing the "fullest assistance" to a requestor would mean providing a readily available record as soon as possible. For example, an agency might routinely prepare a premeeting packet of documents three days in advance of a city council meeting. The packet is readily available so the agency should provide it to a requestor on the same day of the request so he or she can have it for the council meeting.

(2) Means of providing access. An agency must make nonexempt public records "available" for inspection or provide a copy. RCW ((42.17.270/)) 42.56.080. An agency is only required to make records "available" and has no duty to explain the meaning of public records.1 Making records available is often called "access."

Access to a public record can be provided by allowing inspection of the record, providing a copy, or posting the record on the agency's web site and assisting the requestor in finding it (if necessary). An agency must mail a copy of records if requested and if the requestor pays the actual cost of postage and the mailing container.2 The requestor can specify which method of access (or combination, such as inspection and then copying) he or she prefers. Different processes apply to requests for inspection versus copying (such as copy charges) so an agency should clarify with a requestor whether he or she seeks to inspect or copy a public record.

An agency can provide access to a public record by posting it on its public internet web site. Once an agency provides a requestor an internet address and link on the agency's web site to the specific records requested, the agency has provided the records, and at no cost to the requestor. RCW 42.56.520. If requested, an agency should provide reasonable assistance to a requestor in finding a public record posted on its web site. If the requestor does not have internet access, the agency may provide access to the record by allowing the requestor to view the record on a specific computer terminal at the agency open to the public. An agency ((is not required to do so. Despite the availability of the record on the agency's web site, a requestor can still make a public records request and inspect the record or obtain a copy of it by paying the appropriate per-page copying charge)) shall not impose copying charges for access to or downloading records that the agency routinely posts on its web site prior to receipt of a request unless the requestor has specifically requested that the agency provide copies of such records through other means. RCW 42.56.120 (2)(e).

(3) Providing records in installments. The act ((now)) provides that an agency must provide records "if applicable, on a partial or installment basis as records that are part of a larger set of requested records are assembled or made ready for inspection or disclosure." RCW ((42.17.270/)) 42.56.080. An installment can include links to records on the agency's internet web site. The purpose of this installments provision is to allow requestors to obtain records in installments as they are assembled and to allow agencies to provide records in logical batches. The provision is also designed to allow an agency to only assemble the first installment and then see if the requestor claims or reviews it before assembling the next installments. An agency can assess charges per installment for copies made for the requestor, unless it is using the up to two-dollar flat fee charge. RCW 42.56.120(4).

Not all requests should be provided in installments. For example, a request for a small number of documents which are located at nearly the same time should be provided all at once. Installments are useful for large requests when, for example, an agency can provide the first box of records as an installment. An agency has wide discretion to determine when providing records in installments is "applicable." However, an agency cannot use installments to delay access by, for example, calling a small number of documents an "installment" and sending out separate notifications for each one. The agency must provide the "fullest assistance" and the "most timely possible action on requests" when processing requests. RCW ((42.17.290/)) 42.56.100.

(4) Failure to provide records. A "denial" of a request can occur when an agency:

Fails to respond to a request;

Claims an exemption of the entire record or a portion of it; ((or))

Without justification, fails to provide the record after the reasonable estimate of time to respond expires((.

Determines the request is an improper "bot" request. An agency is only required to provide access to public records it has or has used.3 An agency is not required to create a public record in response to a request.

An agency must only provide access to public records in existence at the time of the request. An agency is not obligated to supplement responses. Therefore, if a public record is created or comes into the possession of the agency after the request is received by the agency, it is not responsive to the request and need not be provided. A requestor must make a new request to obtain subsequently created public records.

Sometimes more than one agency holds the same record. When more than one agency holds a record, and a requestor makes a request to the first agency (agency A), ((the first)) agency A cannot respond to the request by telling the requestor to obtain the record from the second agency (agency B). Instead, an agency must provide access to a record it holds regardless of its availability from another agency.4

An agency is not required to provide access to records that were not requested. An agency does not "deny" a request when it does not provide records that are outside the scope of the request because they were never asked for.

(((b))) (5) Claiming exemptions.

(((i))) (a) Redactions. If a portion of a record is exempt from disclosure, but the remainder is not, an agency generally is required to redact (black out) the exempt portion and then provide the remainder. RCW ((42.17.310(2)/)) 42.56.210(1). There are a few exceptions.((5)) 6 Withholding an entire record where only a portion of it is exempt violates the act.((6)) 7 Some records are almost entirely exempt but small portions remain nonexempt. For example, information revealing the identity of a crime victim is exempt from disclosure if certain conditions are met. RCW ((42.17.310 (1)(e)/)) 42.56.240(2). If a requestor requested a police report in a case in which charges have been filed, and the conditions of RCW 42.56.240(2) are met, the agency must redact the victim's identifying information but provide the rest of the report.

Statistical information "not descriptive of any readily identifiable person or persons" is generally not subject to redaction or withholding. RCW ((42.17.310(2)/)) 42.56.210(1). For example, if a statute exempted the identity of a person who had been assessed a particular kind of penalty, and an agency record showed the amount of penalties assessed against various persons, the agency must provide the record with the names of the persons redacted but with the penalty amounts remaining.

Originals should not be redacted. For paper records, an agency should redact materials by first copying the record and then either using a black marker on the copy or covering the exempt portions with copying tape, and then making a copy. Another approach is to scan the paper record and redact it electronically. It is often a good practice to keep the initial copies which were redacted in case there is a need to make additional copies for disclosure or to show what was redacted; in addition, an agency is required under its records retention schedules to keep responses to a public records request for a defined period of time. For electronic records such as databases, an agency can sometimes redact a field of exempt information by excluding it from the set of fields to be copied. For other electronic records, an agency may use software that permits it to electronically redact on the copy of the record. However, in some instances electronic redaction might not be feasible and a paper copy of the record with traditional redaction might be the only way to provide the redacted record. If a record is redacted electronically, by deleting a field of data or in any other way, the agency must identify the redaction and state the basis for the claimed exemption as required by RCW 42.56.210(3). ((See (b)(ii) of this subsection.

(b) Brief explanation of withholding. When an agency claims an exemption for an entire record or portion of one, it must inform the requestor of the statutory exemption and provide a brief explanation of how the exemption applies to the record or portion withheld. RCW ((42.17.310(4)/)) 42.56.210(3). The brief explanation should cite the statute the agency claims grants an exemption from disclosure. The brief explanation should provide enough information for a requestor to make a threshold determination of whether the claimed exemption is proper. Nonspecific claims of exemption such as "proprietary" or "privacy" are insufficient.

One way to properly provide a brief explanation of the withheld record or redaction is for the agency to provide a withholding ((index. It)) log, along with the statutory citation permitting withholding, and a description of how the exemption applies to the information withheld. The log identifies the type of record, its date and number of pages, and the author or recipient of the record (unless their identity is exempt).((7)) 8 The withholding ((index)) log need not be elaborate but should allow a requestor to make a threshold determination of whether the agency has properly invoked the exemption.

Another way to properly provide a brief explanation is to use another format, such as a letter providing the required exemption citations, description of records, and brief explanations. Another way to properly provide a brief explanation is to have a code for each statutory exemption, place that code on the redacted information, and attach a list of codes and the brief explanations with the agency's response.

(((5))) (6) Notifying requestor that records are available. If the requestor sought to inspect the records, the agency should notify him or her that the entire request or an installment is available for inspection and ask the requestor to contact the agency to arrange for a mutually agreeable time for inspection.((8)) 9 The notification should recite that if the requestor fails to inspect or copy the records or make other arrangements within thirty days of the date of the notification that the agency will close the request and refile the records. An agency might consider on a case-by-case basis sending the notification by certified mail to document that the requestor received it.

If the requestor sought copies, the agency should notify him or her of the projected costs and whether a copying deposit is required before the copies will be made. Such notice by the agency with a summary of applicable estimated charges is required when the requestor asks for an estimate. RCW 42.56.120 (2)(f). The notification can be oral to provide the most timely possible response, although it is recommended that the agency document that conversation in its file or in a follow-up email or letter.

(((6))) (7) Documenting compliance. An agency should have a process to identify which records were provided to a requestor and the date of production. In some cases, an agency may wish to number-stamp or number-label paper records provided to a requestor to document which records were provided. The agency could also keep a copy of the numbered records so either the agency or requestor can later determine which records were or were not provided; and, an agency is required to keep copies of its response to a request for the time period set out in its records retention schedule. However, the agency should balance the benefits of stamping or labeling the documents and making extra copies against the costs and burdens of doing so. For example, it may not be necessary to affix a number on the pages of records provided in response to a small request.

If memorializing which specific documents were offered for inspection is impractical, an agency might consider documenting which records were provided for inspection by making ((an index or)) a list of the files or records made available for inspection.

(1) Obligation of requestor to claim or review records. After the agency notifies the requestor that the records or an installment of them are ready for inspection or copying, the requestor must claim or review the records or the installment. RCW ((42.17.300/)) 42.56.120. If the requestor cannot claim or review the records him or herself, a representative may do so within the thirty-day period. Other arrangements can be mutually agreed to between the requestor and the agency.

If a requestor fails to claim or review the records or an installment after the expiration of thirty days, an agency is authorized to stop assembling the remainder of the records or making copies. RCW ((42.17.300/)) 42.56.120. If the request is abandoned, the agency is no longer bound by the records retention requirements of the act prohibiting the scheduled destruction of a requested record. RCW ((42.17.290/)) 42.56.100.

If a requestor fails to claim or review the records or any installment of them within the thirty-day notification period, the agency may close the request and refile the records. If a requestor who has failed to claim or review the records then requests the same or almost identical records again, the agency, which has the flexibility to prioritize its responses to be most efficient to all requestors (see WAC 44-14-040), can process the repeat request for the now-refiled records as a new request after other pending requests.

(2) Time, place, and conditions for inspection. Inspection should occur at a time mutually agreed (within reason) by the agency and requestor. An agency should not limit the time for inspection to times in which the requestor is unavailable. Requestors cannot dictate unusual times for inspection. The agency is only required to allow inspection during the agency's customary office hours. RCW ((42.17.280/)) 42.56.090. Often an agency will provide the records in a conference room or other office area.

The inspection of records cannot create "excessive interference" with the other "essential functions" of the agency. RCW ((42.17.290/)) 42.56.100. Similarly, copying records at agency facilities cannot "unreasonably disrupt" the operations of the agency. RCW ((42.17.270/)) 42.56.080.

An agency may have an agency employee observe the inspection or copying of records by the requestor to ensure they are not altered, destroyed ((or)), disorganized, or removed. RCW ((42.17.290/)) 42.56.100. A requestor cannot alter, mark on, or destroy an original record during inspection. To select a paper record for copying during an inspection, a requestor must use a nonpermanent method such as a removable adhesive note or paper clip.

Inspection times can be broken down into reasonable segments such as half days. However, inspection times cannot be broken down into unreasonable segments to either harass the agency or delay access to the timely inspection of records.

(1) Fulfilling request and closing letter. A records request has been fulfilled and can be closed when a requestor has inspected all the requested records, all copies have been provided, a web link has been provided (with assistance from the agency in finding it, if necessary), an entirely unclear request has not been clarified, a request or installment has not been claimed or reviewed, or the requestor cancels the request. An agency should provide a closing letter stating the scope of the request and memorializing the outcome of the request. A closing letter may not be necessary for smaller requests, or where the last communication with the requestor established that the request would be closed on a date certain. The outcome described in the closing letter might be that the requestor inspected records, copies were provided (with the number range of the stamped or labeled records, if applicable), the agency sent the requestor the web link, the requestor failed to clarify the request, the requestor failed to claim or review the records within thirty days, or the requestor canceled the request. The closing letter should also ask the requestor to promptly contact the agency if he or she believes additional responsive records have not been provided.

(2) Returning assembled records. An agency is not required to keep assembled records set aside indefinitely. This would "unreasonably disrupt" the operations of the agency. RCW ((42.17.270/)) 42.56.080. After a request has been closed, an agency should return the assembled records to their original locations. Once returned, the records are no longer subject to the prohibition on destroying records scheduled for destruction under the agency's retention schedule. RCW ((42.17.290/)) 42.56.100.

(3) Retain copy of records provided. In some cases, particularly for commonly requested records, it may be wise for the agency to keep a separate copy of the records it copied and provided in response to a request. ((This allows the agency to document what was provided.)) A growing number of requests are for a copy of the records provided to another requestor, which can easily be fulfilled if the agency retains a copy of the records provided to the first requestor. The copy of the records provided should be retained for ((a)) the period of time consistent with the agency's retention schedules for records related to disclosure of documents.

(1) Requesting electronic records. The process for requesting electronic public records is the same as for requesting paper public records.

(2) Providing electronic records. When a requestor requests records in an electronic format, the public records officer will provide the nonexempt records or portions of such records that are reasonably locatable in an electronic format that is used by the (name of agency) and is generally commercially available, or in a format that is reasonably translatable from the format in which the agency keeps the record. Costs for providing electronic records are governed by ((WAC 44-14-07003)) RCW 42.56.120 and 42.56.130. The fee schedule is available at (agency address and web site address).

(3) Customized electronic access ((to databases)) services. While not required, and with the consent of the requestor, the (name of agency) may decide to provide customized ((access under RCW 43.105.280 if the record is not reasonably locatable or not reasonably translatable into the format requested)) electronic access services and assess charges under RCW 42.56.120 (2)(f). A customized service charge applies only if the (name of agency) estimates that the request would require the use of information technology expertise to prepare data compilations, or provide customized electronic access services when such compilations and customized access services are not used by the agency for other purposes. The (name of agency) may charge a fee consistent with RCW ((43.105.280)) 42.56.120 (2)(f) for such customized access. The fee schedule is available at (agency address and web site address).

The Public Records Act does not distinguish between access to paper and electronic records. Instead, the act explicitly includes electronic records within its coverage. The definition of "public record" includes a "writing," which in turn includes "existing data compilations from which information may be obtained or translated." RCW ((42.17.020(48) (incorporated by reference into the act by RCW 42.56.010))) 42.56.010(4). Many agency records are now in an electronic format. Many of these electronic formats such as Windows® products are generally available and are designed to operate with other computers to quickly and efficiently locate and transfer information. Providing electronic records can be cheaper and easier for an agency than paper records. Furthermore, RCW ((43.105.250)) 43.105.351 provides: "It is the intent of the legislature to encourage state and local governments to develop, store, and manage their public records and information in electronic formats to meet their missions and objectives. Further, it is the intent of the legislature for state and local governments to set priorities for making public records widely available electronically to the public."

In general, an agency should provide electronic records in an electronic format if requested in that format, if it is reasonable and feasible to do so.1 While not required, an agency may translate a record into an alternative electronic format at the request of the requestor if it is reasonable and feasible to do so, and that action does not create a new public record for the purposes of copying fees. RCW 42.56.120(1). For example, an agency may scan a paper record to make an electronic copy, and that action does not create a new public record. Id. An agency can provide links to specific records on the agency's public internet web site. RCW 42.56.520. An agency shall not impose copy charges for access to or downloading records that the agency routinely posts on its internet web site prior to the receipt of a request unless the requestor has specifically requested that the agency provide copies of such records by other means. RCW 42.56.120 (2)(e).

Reasonableness and technical feasibility ((is)) are the touchstones for providing electronic records. An agency should provide reasonably locatable electronic public records in either their original generally commercially available format (such as an Acrobat PDF® file) or, if the records are not in a generally commercially available format, the agency should provide them in a reasonably translatable electronic format if possible. In the rare cases when the requested electronic records are not reasonably locatable, or are not in a generally commercially available format or are not reasonably translatable into one, the agency might consider customized access. ((See WAC 44-14-05004. An agency may recover its actual costs for providing electronic records, which in many cases is de minimis. See WAC 44-14-050(3).))

What is reasonable and technically feasible for copying and delivery of electronic records in one situation or for one agency may not be in another. Not all agencies, especially smaller units of local government, have the electronic resources of larger agencies and some of the generalizations in these model rules may not apply every time. If an agency initially believes it cannot provide electronic records in an electronic format, it should confer with the requestor and the two parties should attempt to cooperatively resolve any technical difficulties. See WAC 44-14-05003. It is usually a purely technical question whether an agency can provide electronic records in a particular format in a specific case.

(1) "Reasonably locatable" electronic records. The act obligates an agency to provide nonexempt "identifiable … records." RCW 42.56.080. An "identifiable record" is essentially one that agency staff can "reasonably locate." WAC 44-14-04002(2). Therefore, a general summary of the "identifiable record" standard as it relates to electronically locating public records is that the act requires an agency to provide a nonexempt "reasonably locatable" record. This does not mean that an agency can decide if a request is "reasonable" and only fulfill those requests. Rather, "reasonably locatable" is a concept, grounded in the act, for analyzing electronic records issues.

In general, a "reasonably locatable" electronic record is one which can be located with typical search features and organizing methods contained in the agency's current software. For example, a retained email containing the term "XYZ" is usually reasonably locatable by using the email program search feature. However, ((an)) some email search ((feature has)) features have limitations, such as not searching attachments, but ((is)) are a good starting point for the search. Information might be "reasonably locatable" by methods other than a search feature. For example, a request for a copy of all retained emails sent by a specific agency employee for a particular date is "reasonably locatable" because it can be found utilizing a common organizing feature of the agency's email program, such as a chronological "sent" folder. Another indicator of what is "reasonably locatable" is whether the agency keeps the information in a particular way for its business purposes. For example, an agency might keep a database of permit holders including the name of the business. The agency does not separate the businesses by whether they are publicly traded corporations or not because it has no reason to do so. A request for the names of the businesses which are publicly traded is not "reasonably locatable" because the agency has no business purpose for keeping the information that way. In such a case, the agency should provide the names of the businesses (assuming they are not exempt from disclosure) and the requestor can analyze the database to determine which businesses are publicly traded corporations.

(2) "Reasonably translatable" electronic records. The act requires an agency to provide a "copy" of nonexempt records (subject to certain copying charges). RCW 42.56.070(1) and 42.56.080. To provide a photocopy of a paper record, an agency must take some reasonable steps to mechanically translate the agency's original document into a useable copy for the requestor such as copying it in a copying machine, or scanning it into Adobe Acrobat PDF®. Similarly, an agency must take some reasonable steps to prepare an electronic copy of an electronic record or a paper record. Providing an electronic copy is analogous to providing a paper record: An agency must take ((reasonable)) steps to translate the agency's original into a useable copy for the requestor, if it is reasonable and feasible for it to do so.

The "reasonably translatable" concept typically operates in three kinds of situations:

(a) An agency has only a paper record;

(b) An agency has an electronic record in a generally commercially available format (such as a Windows® product); or

(c) An agency has an electronic record in an electronic format but the requestor seeks a copy in a different electronic format.

The following examples assume no redactions are necessary.

(i) Agency has paper-only records. When an agency only has a paper copy of a record, an example of a "reasonably translatable" copy would be scanning the record into an Adobe Acrobat PDF® file and providing it to the requestor. The agency could recover its actual or statutory cost for scanning. See RCW 42.56.120 and WAC 44-14-07003. While not required, providing a PDF copy of the record is analogous to making a paper copy. However, if the agency lacked a scanner (such as a small unit of local government), the record would not be "reasonably translatable" with the agency's own resources. In such a case, the agency could provide a paper copy to the requestor.

(ii) Agency has electronic records in a generally commercially available format. When an agency has an electronic record in a generally commercially available format, such as an Excel® spreadsheet, and the requestor requests an electronic copy in that format, no translation into another format is necessary; the agency should provide the spreadsheet electronically. Another example is where an agency has an electronic record in a generally commercially available format (such as Word®) and the requestor requests an electronic copy in Word®. An agency cannot instead provide a WordPerfect® copy because there is no need to translate the electronic record into a different format. In the paper-record context, this would be analogous to the agency intentionally making an unreadable photocopy when it could make a legible one. Similarly, the WordPerfect® "translation" by the agency is an attempt to hinder access to the record. In this example, the agency should provide the document in Word® format. Electronic records in generally commercially available formats such as Word® could be easily altered by the requestor. Requestors should note that altering public records and then intentionally passing them off as exact copies of public records might violate various criminal and civil laws.

(iii) Agency has electronic records in an electronic format other than the format requested. When an agency has an electronic record in an electronic format (such as a Word® document) but the requestor seeks a copy in another format (such as WordPerfect®), the question is whether the agency's document is "reasonably translatable" into the requested format. If the format of the agency document allows it to "save as" another format without changing the substantive accuracy of the document, and the agency has a WordPerfect® license, this would be "reasonably translatable." The agency's record might not translate perfectly, but it was the requestor who requested the record in a format other than the one used by the agency. Another example is where an agency has a database in a unique format that is not generally commercially available. A requestor requests an electronic copy. The agency can convert the data in its unique system into a near-universal format such as a comma-delimited or tab-delimited format. The requestor can then convert the comma-delimited or tab-delimited data into a database program (such as Access®) and use it. The data in this example is "reasonably translatable" into a comma-delimited or tab-delimited format so the agency should do so. A final example is where an agency has an electronic record in a generally commercially available format (such as Word®) but the requestor requests a copy in an obscure word processing format. The agency offers to provide the record in Word® format but the requestor refuses. The agency can easily convert the Word® document into a standard text file which, in turn, can be converted into most programs. The Word® document is "reasonably translatable" into a text file so the agency should do so. It is up to the requestor to convert the text file into his or her preferred format, but the agency has provided access to the electronic record in the most technically feasible way and not attempted to hinder the requestor's access to it.

(3) Agency should keep an electronic copy of the electronic records it provides. An electronic record is usually more susceptible to manipulation and alteration than a paper record. Therefore, an agency should keep((, when feasible,)) an electronic copy of the electronic records it provides to a requestor to show the exact records it provided, for the time period required in its records retention schedule. Additionally, an electronic copy might also be helpful when responding to subsequent electronic records requests for the same records.

Technical reasonableness and feasibility can vary from request to request. When a request for electronic records involves technical issues, the best approach is for both parties to confer and cooperatively resolve them. Often a telephone conference will be sufficient. This approach is consistent with the requirement that agencies provide the "fullest assistance" to a requestor. RCW 42.56.100 and WAC 44-14-04003(2). Furthermore, if a requestor files an enforcement action under the act to obtain the records, the burden of proof is on the agency to justify its refusal to provide the records. RCW 42.56.550(1). If the requestor articulates a reasonable technical alternative to the agency's refusal to provide the records electronically or in the requested format, and the agency never offered to confer with the requestor, the agency will have difficulty proving that its refusal was justified.

When locating the requested records or translating them into the requested format cannot be done without specialized programming, RCW ((43.105.280 allows agencies to charge some fees for "customized access." The statute provides: "Agencies should not offer customized electronic access services as the primary way of responding to requests or as a primary source of revenue.")) 42.56.120(3) authorizes agencies to assess a customized service charge if the agency estimates that the request would require use of information technology expertise to prepare data compilations, or provide customized electronic access services when such compilations and customized access services are not used by the agency for other business purposes.

Most public records requests for electronic records can be fulfilled based on the "reasonably locatable" and "reasonably translatable" standards. Resorting to customized access should not be the norm. An example of where "customized access" would be appropriate is if a state agency's old computer system stored data in a manner in which it was impossible to extract the data into comma-delimited or tab-delimited formats, but rather required a programmer to spend more than a nominal amount of time to write computer code specifically to extract it. Before resorting to customized access, the agency should confer with the requestor to determine if a technical solution exists not requiring the specialized programming. An agency must notify the requestor to provide an explanation of the service charge including why it applies, a description of the specific expertise, and a reasonable estimate of the cost of the charge. The notice must also provide the requestor the opportunity to amend his or her request in order to avoid or reduce the customized service charge. RCW 42.56.120(3).

The ((December 2006 amendments to the)) Federal Rules of Civil Procedure provide guidance to parties in litigation on their respective obligations to provide access to, or produce, "electronically stored information." See Federal Rules of Civil Procedure 26 and 34. The obligations of state and local agencies under those federal rules (and under any state-imposed rules or procedures that adopt the federal rules) to search for and provide electronic records may be different, and in some instances more demanding, than those required under the Public Records Act. The federal discovery rules and the Public Records Act are two separate laws imposing different standards. However, sometimes requestors make public records requests to obtain evidence that later may be used in non-Public Records Act litigation against the agency providing the records. Therefore, it may be prudent for agencies to consult with their attorneys regarding best practices of retaining copies of the records provided under the act so there can be no question later of what was and what was not produced in response to the request in the event that electronic records, or records derived from them, become issues in court.

An agency must publish and maintain a list of the "other statute" exemptions from disclosure (that is, those exemptions found outside the Public Records Act) that it believes potentially exempt records it holds from disclosure. RCW ((42.17.260(2)/)) 42.56.070(2). The list is "for informational purposes" only and an agency's failure to list an exemption "shall not affect the efficacy of any exemption." RCW ((42.17.260(2)/)) 42.56.070(2). A list of possible "other statute" exemptions is posted on the attorney general's office web site ((of the Municipal Research Service Center at www.mrsc.org/Publications/prdpub04.pdf (scroll to Appendix C))). See WAC 44-14-06002.

(((1) General.)) The act and other statutes contain hundreds of exemptions from disclosure and dozens of court cases interpret them. A full treatment of all exemptions is beyond the scope of the model rules. ((Instead, these comments to the model rules provide general guidance on exemptions and summarize a few of the most frequently invoked exemptions. However, the scope of exemptions is determined exclusively by statute and case law; the comments to the model rules merely provide guidance on a few of the most common issues.

(1) ((Costs for paper copies)) Inspection. There is no fee for inspecting public records, including inspecting records on the (name of agency) web site.

(If agency decides to charge more than fifteen cents per page, use the following language:) The (name of agency) charges (amount) per page for a standard black and white photocopy of a record selected by a requestor.)) (2) Actual costs. (If the agency determines it will charge actual costs for copies, it may do so after providing notice and a public hearing.) A statement of the factors and the manner used to determine ((this charge)) the charges for copies is available from the public records officer. The costs for copies of records are as follows (provide details):

(5) Processing payments. Before beginning to make the copies or processing a customized service, the public records officer or designee may require a deposit of up to ten percent of the estimated costs of copying all the records selected by the requestor. The public records officer or designee may also require the payment of the remainder of the copying costs before providing all the records, or the payment of the costs of copying an installment before providing that installment. The (name of agency) will not charge sales tax when it makes copies of public records.

(3))) (6) Costs of mailing. The (name of agency) may also charge actual costs of mailing, including the cost of the shipping container.

(((4))) (7) Payment. Payment may be made by cash, check, or money order to the (name of agency).

(1) No fees for costs of locating records or preparing records for inspection or copying. An agency cannot charge a fee for locating public records or for preparing the records for inspection or copying. RCW ((42.17.300/)) 42.56.120.1 An agency cannot charge fees for a person to inspect or access records on the agency's public internet web site. An agency cannot charge a fee for access to or downloading records the agency routinely posts on its public internet web site prior to the receipt of a request unless the requestor has specifically requested that the agency provide copies of such records through other means. RCW 42.56.120 (2)(e).

An agency cannot charge a "redaction fee" for the staff time necessary to prepare the records for inspection, for the copying required to redact records before they are inspected, or an archive fee for getting the records from ((offsite)) off-site. Op. Att'y Gen. 6 (1991). These are the costs of making the records available for inspection or copying and cannot be charged to the requestor.

(2) ((Standard photocopy charges. Standard photocopies are black and white 8x11 paper copies. An agency can choose to calculate its copying charges for standard photocopies or to opt for a default copying charge of no more than fifteen cents per page.

If it attempts to charge more than the fifteen cents per page maximum for photocopies,)) Actual costs. If assessing actual costs, an agency must establish a statement of the "actual cost" of the copies it provides, which must include a "statement of the factors and the manner used to the determine the actual per page cost." RCW ((42.17.260(7)/)) 42.56.070(7). ((An agency may include the costs "directly incident" to providing the copies such as paper, copying equipment, and staff time to make the copies. RCW 42.17.260 (7)(a)/42.56.070 (7)(a).2

If it charges more than the default rate of fifteen cents per page, an agency must provide its calculations and the reasoning for its charges. RCW 42.17.260(7)/42.56.070(7) and 42.17.300/42.56.120.3 A price list with no analysis is insufficient))2 The actual costs include the actual cost of the paper and the per page cost for use of agency copying (including scanning) equipment; the actual cost of the electronic production or file transfer of the record; the use of any cloud-based data storage and processing service; costs directly incident to the cost of postage or delivery charges and the cost of any container or envelope used; and, the costs directly incident to transmitting such records in an electronic format, including the cost of any transmission charge and the use of any physical media device provided by the agency. An agency may include staff salaries, benefits or other general administrative or overhead charges only if those costs are directly related to the actual cost of copying the public records. Staff time to copy and send the records may be included in an agency's actual costs. An agency's calculations and reasoning need not be elaborate but should be detailed enough to allow a requestor or court to determine if the agency has properly calculated its copying charges. An agency should generally compare its copying charges to those of commercial copying centers.

(3) Statutory default costs. If an agency opts for the default copying charges ((of fifteen cents per page)) pursuant to RCW 42.56.120, it need not calculate its actual costs. RCW ((42.17.260(8)/42.56.070(8).

(4))) 42.56.120 (2)(b). However, it must declare the reasons for why calculating the actual costs would be unduly burdensome, and then it is limited to the statutory costs for those records. Id.

(6) Copying charges apply to copies selected by requestor. Often a requestor will seek to inspect a large number of records but only select a smaller group of them for copying. Copy charges can only be charged for the records selected by the requestor. RCW ((42.17.300/)) 42.56.120 (charges allowed for "providing" copies to requestor).

The requestor should specify whether he or she seeks inspection or copying. The agency should inform the requestor that inspection is free. This can be noted on the agency's request form. If the requestor seeks copies, then the agency should inform the requestor of the copying charges for the request. An agency should not assemble a large number of records, fail to inform the requestor that inspection is free, and then attempt to charge for copying all the records.

Sometimes a requestor will choose to pay for the copying of a large batch of records without inspecting them. This is allowed((, provided that the requestor is informed that inspection is free)). Informing the requestor on a request form that inspection is free is sufficient.

(((5))) (7) Use of outside vendor. Typically an agency makes the requested copies. However, an agency is not required to copy records at its own facilities. An agency can send the project to a commercial copying center and bill the requestor for the amount charged by the vendor.3 An agency is encouraged to do so when an outside vendor can make copies more quickly and less expensively than an agency. An agency can arrange with the requestor for him or her to pay the vendor directly. This is an example of where any agency might enter into an alternative fee arrangement under RCW 42.56.080(4). An agency cannot charge the default ((fifteen cents per page rate)) charges when its "actual cost" at a copying vendor is less. The default rates ((is)) are only for agency-produced copies. RCW ((42.17.300/)) 42.56.120.

(((6))) (8) Sales tax. An agency cannot charge sales tax on copies it makes at its own facilities. RCW 82.12.02525.

(((7))) (9) Costs of mailing or sending records. If a requestor asks an agency to mail copies, the agency may charge for the actual cost of postage and the shipping container (such as an envelope or CD mailing sleeve). RCW ((42.17.260 (7)(a)/)) 42.56.070 (7)(a).

The act generally governs copying charges for public records, but several specific statutes govern charges for particular kinds of records. RCW ((42.17.305/)) 42.56.130. The following nonexhaustive list provides some examples: RCW 46.52.085 (charges for traffic accident reports), RCW 10.97.100 (copies of criminal histories), RCW 3.62.060 and 3.62.065 (charges for certain records of municipal courts), and RCW 70.58.107 (charges for birth certificates).

(1) An agency ((has the discretion to waive copying charges. For administrative convenience, many agencies waive copying charges for small requests. For example, the attorney general's office does not charge copying fees if the request is for twenty-five or fewer standard photocopies)) may waive charges pursuant to its rules and regulations. RCW 42.56.120(4).

(2) An agency may enter into a contract, memorandum of understanding or other agreement with a requestor that provides an alternative fee arrangement to the charges, or in response to a voluminous or frequently occurring request. RCW 42.56.120(4).

(1) Copying deposit. An agency may charge a deposit of up to ten percent of the estimated copying costs of an entire request, including a customized service charge, before beginning to copy the records. RCW ((42.17.300/)) 42.56.120(4).((1)) The estimate must be reasonable. An agency can require the payment of the deposit before copying an installment of the records or the entire request. The deposit applies to the records selected for copying by the requestor, not all the records made available for inspection. An agency is not required to charge a deposit. An agency might find a deposit burdensome for small requests where the deposit might be only a few dollars. Any unused deposit must be refunded to the requestor.

When copying is completed, the agency can require the payment of the remainder of the copying charges before providing the records. For example, a requestor makes a request for records that comprise one box of paper documents. The requestor selects the entire box for copying. The agency estimates that the box contains three thousand pages of records. The agency charges ((ten)) fifteen cents per page so the cost would be three hundred fifty dollars. The agency obtains a ten percent deposit of ((thirty)) thirty-five dollars and then begins to copy the records. The total number of pages turns out to be two thousand nine hundred so the total cost is two hundred ninety dollars. The ((thirty)) thirty-five dollar deposit is credited to the two hundred ninety dollars. The agency requires payment of the remaining ((two hundred sixty dollars)) amount before providing the records to the requestor.

(2) Copying charges for each installment. If an agency provides records in installments, the agency may charge and collect all applicable copying fees (not just the ten percent deposit) for each installment, unless the agency is assessing a two-dollar flat fee. RCW ((42.17.300/)) 42.56.120. The agency may agree to provide an installment without first receiving payment for that installment.

(1) Petition for internal administrative review of denial of access. Any person who objects to the initial denial or partial denial of a records request may petition in writing (including email) to the public records officer for a review of that decision. The petition shall include a copy of or reasonably identify the written statement by the public records officer or designee denying the request.

(2) Consideration of petition for review. The public records officer shall promptly provide the petition and any other relevant information to (public records officer's supervisor or other agency official designated by the agency to conduct the review). That person will immediately consider the petition and either affirm or reverse the denial within two business days following the (agency's) receipt of the petition, or within such other time as (name of agency) and the requestor mutually agree to.

(3) (Applicable to state agencies only.) Review by the attorney general's office. Pursuant to RCW ((42.17.325/)) 42.56.530, if the (name of state agency) denies a requestor access to public records because it claims the record is exempt in whole or in part from disclosure, the requestor may request the attorney general's office to review the matter. The attorney general has adopted rules on such requests in WAC 44-06-160.

(4) Judicial review. Any person may obtain court review of denials of public records requests pursuant to RCW ((42.17.340/)) 42.56.550 at the conclusion of two business days after the initial denial regardless of any internal administrative appeal.

The act requires an agency to "establish mechanisms for the most prompt possible review of decisions denying" records requests. RCW ((42.17.320/)) 42.56.520. An agency internal review of a denial need not be elaborate. It could be reviewed by the public records officer's supervisor, or other person designated by the agency. The act deems agency review to be complete two business days after the initial denial, after which the requestor may obtain judicial review. Large requests or requests involving many redactions may take longer than two business days for the agency to review. In such a case, the requestor could agree to a longer internal review period.

The attorney general's office is authorized to review a state agency's claim of exemption and provide a written opinion. RCW ((42.17.325/)) 42.56.530. This only applies to state agencies and a claim of exemption. See WAC 44-06-160. A requestor may initiate such a review by sending a request for review to Public Records Review, Office of the Attorney General, P.O. Box 40100, Olympia, Washington 98504-0100 or publicrecords@atg.wa.gov.

(1) Seeking judicial review. The act provides that an agency's decision to deny a request is final for purposes of judicial review two business days after the initial denial of the request. RCW ((42.17.320/)) 42.56.520.1 Therefore, the statute allows a requestor to seek judicial review two business days after the initial denial whether or not he or she has exhausted the internal agency review process.2 An agency should not have an internal review process that implies that a requestor cannot seek judicial review until internal reviews are complete because RCW ((42.17.320/)) 42.56.520 allows judicial review two business days after the initial denial.

The act provides a speedy remedy for a requestor to obtain a court hearing on whether the agency has violated the act. RCW ((42.17.340 (1) and (2)/)) 42.56.550 (1) and (2). The court proceeding is a civil action, seeking judicial review. The purpose of the quick judicial procedure is to allow requestors to expeditiously find out if they are entitled to obtain public records.3 To speed up the court process, a public records case may be decided merely on the "motion" of a requestor and "solely on affidavits." RCW ((42.17.340 (1) and (3)/)) 42.56.550 (1) and (3).

(2) Statute of limitations. The statute of limitations for an action under the act is one year after the agency's claim of exemption or the last production of a record on a partial or installment basis. RCW ((42.17.340(6)/)) 42.56.550(6).

(3) Procedure. To initiate court review of a public records case, a requestor can file a "motion to show cause" which directs the agency to appear before the court and show any cause why the agency did not violate the act. RCW ((42.17.340 (1) and (2)/)) 42.56.550 (1) and (2).4 A requestor can also file a summons and complaint, initiating the civil action, and then file a motion. The case must be filed in the superior court in the county in which the record is maintained. RCW ((42.17.340 (1) and (2)/)) 42.56.550 (1) and (2). In a case against a county, the case may be filed in the superior court of that county, or in the superior court of either of the two nearest adjoining counties. RCW ((42.17.340(5)/)) 42.56.550(5). The show-cause procedure is designed so that a nonattorney requestor can obtain judicial review himself or herself without hiring an attorney. A requestor can file a motion for summary judgment to adjudicate the case.5 ((However, most cases are decided on a motion to show cause.6))

(4) Burden of proof. The burden is on an agency to demonstrate that it complied with the act. RCW ((42.17.340 (1) and (2)/)) 42.56.550 (1) and (2).

(5) Types of cases subject to judicial review. The act provides three mechanisms for court review of a public records dispute.

(a) Denial of record. The first kind of judicial review is when a requestor's request has been denied by an agency. RCW ((42.17.340(1)/)) 42.56.550(1). This is the most common kind of case.

(b) (("Reasonable estimate.")) Estimates. The second form of judicial review is when a requestor challenges an agency's "reasonable estimate" of the time to provide a full response or estimated charges for copies. RCW ((42.17.340(2)/)) 42.56.550(2).

(c) Injunctive action to prevent disclosure. The third mechanism of judicial review is an injunctive action to restrain the disclosure of public records. RCW ((42.17.330/)) 42.56.540. An action under this statute can be initiated by the agency, a person named in the disputed record, or a person to whom the record "specifically pertains." The party seeking to prevent disclosure has the burden of proving the record is exempt from disclosure.((7)) 6 The party seeking to prevent disclosure must prove both the necessary elements of an injunction and that a specific exemption prevents disclosure.((8)) 7

(6) "In camera" review by court. The act authorizes a court to review withheld records or portions of records "in camera." RCW ((42.17.340(3)/)) 42.56.550(3). "In camera" means a confidential review by the judge alone in his or her chambers. Courts are encouraged to conduct an in camera review because it is often the only way to determine if an exemption has been properly claimed.((9)) 8

A court may have local court rules on Public Records Act cases and in camera review procedures. In the alternative, an agency should prepare an in camera index of each withheld record or portion of a record to assist the judge's in camera review. This is a second index, in addition to a withholding index provided to the requestor. The in camera index should number each withheld record or redacted portion of the record, provide the unredacted record or portion to the judge with a reference to the index number, and provide a brief explanation of each claimed exemption corresponding to the numbering system. The agency's brief explanation should not be as detailed as a legal brief because the opposing party will not have an opportunity to review it and respond. The agency's legal briefing should be done in the normal course of pleadings, with the opposing party having an opportunity to respond.

The in camera index and disputed records or unredacted portions of records should be filed under seal. The judge should explain his or her ruling on each withheld record or redacted portion by referring to the numbering system in the in camera index. If the trial court's decision is appealed, the in camera index and its attachments should be made part of the record on appeal and filed under seal in the appellate court.

(7) Attorneys' fees, costs, and penalties to prevailing requestor. The act requires an agency to pay a prevailing requestor's reasonable attorneys' fees((,)) and costs((, and)). In addition, it is within the discretion of a court to assess a daily penalty against the agency, considering several factors. RCW ((42.17.340(4)/)) 42.56.550(4).10 Only a requestor can be awarded attorneys' fees, costs, or a daily penalty under the act; an agency or a third party resisting disclosure cannot.((10)) 11

A requestor is the "prevailing" party when he or she obtains a judgment in his or her favor, the suit was reasonably necessary to obtain the record, or a wrongfully withheld record was provided for another reason.((11)) 12 In an injunctive action under RCW ((42.17.330/)) 42.56.540, the prevailing requestor cannot be awarded attorneys' fees, costs, or a daily penalty against an agency if the agency took the position that the record was subject to disclosure.((12)) 13

The purpose of the act's attorneys' fees, costs, and daily penalty provisions is to reimburse the requestor for vindicating the public's right to obtain public records, to make it financially feasible for requestors to do so, and to deter agencies from improperly withholding records.((13)) 14 However, a court is only authorized to award "reasonable" attorneys' fees. RCW ((42.17.340(4)/)) 42.56.550(4). A court has discretion to award attorneys' fees based on an assessment of reasonable hourly rates and which work was necessary to obtain the favorable result.((14)) 15

The award of "costs" under the act is for all of a requestor's nonattorney-fee costs and is broader than the court costs awarded to prevailing parties in other kinds of cases.((15)) 16

((A daily penalty of between five dollars to one hundred dollars must be awarded to a prevailing requestor, regardless of an agency's "good faith."16 An agency's "bad faith" can warrant a penalty on the higher end of this scale.17 The penalty is per day, not per-record per-day.18)) The penalty range is up to one hundred dollars a day. RCW 42.56.550(4). Courts will consider a nonexclusive list of penalty factors in determining whether to assess a penalty, and the amount.17