A primer on the Public Records Act
by Andrew Bergh
Need a refresher course on the Public Records Act, which is codified
at chapter 42.56 RCW? An excellent place to start is White v. City of
Lakewood, _ Wn. App. _ (2016), which was decided three months ago by
the Washington Court of Appeals (Division Two).
White arises from a criminal investigation that took place in
Pierce County a little over four years ago.
In mid-May 2012, Officer Noble of the Lakewood Police Department used
information from a confidential informant to obtain a search warrant for
an apartment in Lakewood. The search warrant was executed on May 18,
2012, resulting in the seizure of three grams of marijuana, a few pipes,
and some cash. No arrests were made; no further investigation was
conducted; and Officer Noble left the police department for unknown
reasons in August 2012.
Thereafter, James White, a criminal defense lawyer in Tacoma, was
contacted by a potential client wanting to know if he/she had a civil
rights claim arising from the execution of the search warrant. Over the
course of the next three months, White served three different public
records requests on the City of Lakewood.
The first PRA request was served on June 26, 2012. It was worded
generally, asking for “any documents” relating to the execution of the
search warrant at the apartment in question, including “any lists or
inventory of items recovered.” The City responded one week later on
July 3, 2012, claiming the criminal investigation was still “active” –
and that the requested documents were therefore exempt from disclosure
under the so-called “effective law enforcement” exemption contained in
Twenty four days later on July 27, 2012, White served a second PRA
request on the City that was essentially identical to the first one. The
only difference was that it sought not only “any documents” but also any
“emails/communications/reports.” The City responded almost seven weeks
later on Sept. 5, 2012. This time, records were produced but with the
We have released the portions of the record which are not exempt
from disclosure by [chapter 42.56 RCW] and/or other statutes.. . . .
Your request for public records will be considered closed unless
you respond to the contrary by October 5, 2012.
According to a paralegal employed by the City, she put the documents
produced in the City’s outgoing mailbox on Sept. 5, 2012. (This date is
relevant to the statute of limitations defense later asserted by the
White served his third PRA request on the City 19 days later on
Sept. 24, 2012. A variation on the same theme, this request sought all
“search warrants/information/documents” supplied to the Superior Court
judge who had issued the search warrant for the apartment in question.
The request was forwarded to a lieutenant at the Lakewood Police
Department, who concluded that the sought documents were part of an
“active investigation.” Consequently, in its response eight days later
on Oct. 2, 2012, the City claimed they were exempt from disclosure under
the effective law enforcement exemption.
Fast forward almost one year later to Sept. 5, 2013, which is when
White hired counsel to assist with an enforcement action against the
City under the PRA. The lawsuit was filed in Pierce County Superior
Court the very next day on Sept. 6, 2013 – i.e., exactly 366 days after
the City had served its response to the second PRA request. Seventeen
days later on Sept. 23, 2013 – exactly 356 days after its initial
response to the third PRA – the City provided the requested search
warrant and affidavits.
It’s unclear what events took place during the next 14 months. What’s
known, though, is that in early November 2014, White filed a motion to
show cause for PRA penalties, and the City included a cross-motion for
dismissal – presumably on statute of limitations grounds – in its
White didn’t fare so well in Round One.
With regard to the first and second PRA requests, the trial court
ruled that the plaintiff’s claims were time-barred by the one-year
limitation period set forth in RCW 42.56.550(6). As for the third PRA
request, which is the one where the City didn’t produce responsive
documents for 356 days, the trial court found the City had mishandled
the request and imposed a $10 per day penalty for its violation.
White timely appealed.
At the outset of its analysis, the Court of Appeals identified the
principles applicable generally to the PRA:
As a “strongly worded mandate for broad disclosure of public
records,” the disclosure provisions of the PRA are broadly construed
while its exemptions are narrowly construed.
The responding agency has the burden of proof that refusal to
permit public inspection and copying, whether in whole or in part,
is authorized by statute.
Unless the requested record falls within a specific exemption of
the PRA (or other relevant statute), the agency must produce the
A person who prevails in an action brought under the PRA shall be
awarded all costs, including reasonable attorney fees. In addition,
the trial court has discretion to award up to $100 for each day such
person was denied the right to inspect or copy the public record.
As mentioned above, two of White’s PRA requests were dismissed on
statute of limitations grounds. Under RCW 42.56.550(6), PRA actions
against an agency must be filed within one year of either the agency’s
“claim of exemption” or “the last production of a record.” As
shown by Division Two’s review of two recent Washington Supreme Court
decisions, however, the one-year limitation period is only triggered
when a valid claim of exemption is made.
The first case discussed by the Court of Appeals was Rental
Housing Ass’n of Puget Sound v. City of Des Moines, 165 Wn.2d 525
(2009). There, the agency’s response to the PRA request had failed to
describe the withheld records with any particularity – specifically, by
stating the type of record withheld, its date, the number of pages, and
the author/recipient. Moreover, the response didn’t explain, either
specifically or generally, which statutory exemption(s) applied to the
withheld records. Under these circumstances, said our high court, the
agency’s reply “was insufficient to constitute a proper claim of
exemption” – and therefore didn’t trigger the one-year limitation
The second case covered by Division Two was Sanders v. State,
169 Wn.2d 827 (2010). There, the Attorney General’s office responded to
a PRA request with 1,000 pages of material and an index of all records
in its possession, including those withheld. Although the index asserted
the attorney-client and work product privileges as to the documents
withheld, it nowhere provided any facts about how the exemptions
applied. Rejecting the State’s argument that its index was sufficient to
satisfy the PRA, the Sanders court held that claimed exemptions
“cannot be vetted for validity if they are unexplained.” The justices
also provided the following definitions:
A record is either “disclosed” or “not disclosed.” To be
disclosed, its existence must be revealed to the requesting party.
Disclosed records are either “produced” or “withheld.”
Withholding a nonexempt document is a “wrongful withholding”
that violates the PRA.
A document can never be exempt from disclosure; it can only be
exempt from production. If a claimed exemption doesn’t actually
cover the withheld document, it isn’t “valid.”
Since the City had specifically invoked the effective law enforcement
exemption, however, the Court of Appeals had to discuss yet another
decision by our high court, Newman v. King County, 133 Wn.2d 565
(1997). There, a journalist had made a PRA request for access to the
police file of an unsolved murder dating back to 1969. The county
provided the initial incident report but nothing else, claiming a
categorical exemption under the effective law enforcement exemption
without disclosing any details whatsoever regarding the withheld
records. In addition, the county presented evidence to establish that
the case had not been closed and was still being investigated. Given
these circumstances, the Newman court held that a categorical
exemption is proper in the case of “an open and active police
investigation file because it is essential for effective law
There is a certain tension between Rental Housing and
Sanders, supra, which require a sufficient disclosure in
order for an exemption claim to be valid, and Newman, which says
a categorical exemption – without any disclosure at all – suffices when
the effective law enforcement exemption is claimed. Division Two
reconciled these cases by noting how “an open and active police
investigation is a unique public service requiring unique safeguards
from premature disclosure.” On the other hand, the Court of Appeals
[T]he agency asserting a categorical exemption from disclosure
based on the effective law enforcement exemption statute, does so at
its own risk because the exemption only covers investigations that
are “open and active.” [Citation.] Thus, if the investigation is in
fact not open and active, then the agency asserting that it is an
open and active investigation is potentially liable for failing to
disclose or produce the requested documents and the statute of
limitations under RCW 42.56.550(6) is not triggered because the
agency’s claimed exception is invalid.
Against this background, Division Two proceeded to conduct a de novo
review of the trial court’s rulings on a request-by-request basis.
Having laboriously set forth most of the ground rules, its discussion
was fairly straightforward.
With regard to White’s first PRA request, the City had asserted a
categorical exemption as allowed by Newman, supra. As the
City conceded at oral argument, however, the underlying investigation
was no longer open and active when the first PRA request was served in
late June 2012. Since this meant the City’s claim of exemption was
invalid and insufficient to trigger the statute of limitations, the
Court of Appeals held that the trial court had erred by dismissing
White’s claim on the ground it was time-barred.
In its response to the second PRA request, the City had not
specifically cited the effective law enforcement exemption, instead
referencing the PRA (“and other statutes”) in only a general way.
Cutting the City some slack, Division Two said this verbiage was
sufficient to constitute an “implied claim” of exemption. Whether
express or implied, however, the fact remained there was no open and
active investigation when the claim was asserted – so once again, there
was no valid claim and the statute of limitations wasn’t then triggered.
But what did start the clock running, said the Court of Appeals,
was the “last production” by the City. Since the production date was
Sept. 5, 2012 and White’s lawsuit wasn’t filed until 366 days later on
Sept. 6, 2013, Division Two ultimately agreed that White’s claim arising
from his second PRA request had been properly dismissed as time-barred.
With regard to his third PRA request, White had only argued that the
trial court had abused its discretion by imposing a mere $10 per day
penalty. As the Court of Appeals observed, when considering the proper
penalty award, trial courts must consider the seven mitigating and nine
aggravating factors outlined in Yousoufian v. Office of Ron Sims,
King County Executive, 168 Wn.2d 444 (2010). In light of its holding
that White’s claim arising from the first PRA request had been
improperly dismissed, Division Two declined to reach the merits of his
argument, vacated the prior award, and remanded the matter with
instructions for the trial court to reconsider the properly penalty
amount using the Yousoufian factors. As the prevailing party on
the claim arising from his first PRA request, White was also authorized
to petition for his reasonable attorney fees.
If you have little or no familiarity with public records requests,
the PRA can be mildly daunting, if not intimidating. At the end of the
day, however, the PRA can be an invaluable discovery tool if public
records have any relevance in a given case. While litigants commonly
(and improperly) play hide-the-ball during discovery, a public agency
doesn’t have that same option. And if an agency is less than
forthcoming in response to a PRA request, between the liberal
construction of the PRA in favor of broad disclosure and the rights and
remedies afforded by it, requesting parties have considerable leverage
to make sure the agency doesn’t shirk its statutory responsibilities.
WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his
practice to plaintiff's personal injury cases, including professional
liability and insurance bad faith.
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