PAGE 28

The following info is given to cities from the Municipal Research Service Center of Washington.

While it deals with cities, it also pertains to any tax-paid public body in Washington State.

 Government records--why they are public

Because city (read all city, county, state, taxing district and school offices staffs) are generally quite busy with their many tasks, requests for disclosure of public records seem to occur at inconvenient times, and are often considered as time-consuming nuisances. Despite this perception, every city (read all city, county, state, taxing district and school offices staffs) official and employee should be aware of the powerful wording of the legislative policy statement which was incorporated into the public disclosure act in 1992:

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 they have created. The public records subdivision of this chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy.

When passed in 1972, Initiative 276 contained a similar public policy statement:

It is hereby declared by the sovereign people to be the public policy of the state of Washington: ...(11) That, 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.

Clearly, both the state legislature and the voters of Washington are unambiguous about their position on public disclosure: the citizens of this state have a right to know almost all of the details of how city, county and state government is run. The courts have enforced this policy by consistently giving narrow interpretations of the exemptions to public disclosure.

 So, if you are annoyed at a disclosure request because of the time it will take to locate the records, or because the records will disclose that some city (read all city, county, state, taxing district and school offices staffs) official or employee made a mistake, or did something improperly, keep the following statute in mind:

Courts shall take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials and others.

Question: Must the city (read all city, county, state, taxing district and school offices staffs) disclose a letter of resignation from a disgruntled employee? The letter consists of a rambling tirade in which the employee criticizes his supervisor, the mayor and the council for a number of decisions.

Answer: The letter must be disclosed. The city can delete from the letter only information which is covered by a specific statutory exemption.

Working for city (read all city, county, state, taxing district and school offices staffs) government is like working inside a goldfish bowl. Almost everything is open to public scrutiny, like it or not. Respond to public disclosure requests efficiently and graciously since the public is not only your client, but also your employer.

All requests for public records must be examined carefully, and everything provided except for those records which are clearly exempt from disclosure. If an employee discloses a public record, and later analysis or court decision shows it should not have been disclosed, the city may be immune from liability:

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 provisions of this chapter.

In order to act in good faith, city (read all city, county, state, taxing district and school offices) employees and officials making disclosure decisions must be familiar with the public disclosure requirements and the many exemptions contained in the statutes. Legal advice should be sought in situations where statutory requirements seem unclear. Fortunately, court decisions and attorney general opinions are available for guidance in this complex field.

The public records disclosure statutes, along with the Open Public Meetings Act, provide the foundation for a city (read all city, county, state, taxing district and school offices staffs) government which is open to the public. Such openness encourages participation and awareness, and helps dispel fears that local government is not responsible or responsive to the people.

Question: Must the city (read all city, county, state, taxing district and school offices staffs) disclose copies of (it's) bank records?

Answer: Yes. The bank records concern public funds and should be disclosed upon request.

There is one exception: if the (read all city, county, state, taxing district and school offices) bank accounts are kept in such a way that disclosure of a particular account would reveal exempt tax return information, then that data should not be disclosed. For instance, if a city (read all city, county, state, taxing district and school offices) has only two or three motels, disclosure of hotel/motel tax revenue could enable a person to estimate the income of a particular taxpayer.

 Q: What Are Public Records?

A: "public record" is defined 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 any state or local agency regardless of physical form or characteristics. "Writing" is also defined in the disclosure statutes:

"Writing" means handwriting, typewriting, printing, Photostatting, 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.

Cities (read all city, county, state, taxing district and school offices) are not required to create documents in order to comply with a request for specific information. Rather, they must produce existing records for review and copying.

Also, cities (read all city, county, state, taxing district and school offices staffs) are not obligated to compile information from various records so that information is in a form which is more useful to the requester. For example, if someone wants records concerning the time it took the city fire department to respond to residential fires occurring between midnight and 6 a.m. over a two year period, the city only needs to provide copies of existing records. In other words, city employees are not required to do research for private individuals.

Question: Is the city clerk required to provide information over the phone to a newspaper reporter who is asking "what occurred at the council meeting last night?"

Answer: This is not a public disclosure request because the caller is not asking to review or copy a public record. There is no legal obligation to provide oral information concerning what occurred at the meeting. However, the reporter can request a copy of the minutes of the meeting after they are prepared. It is an administrative decision whether the city staff should take the time to answer oral requests for non-record information.

Electronic Data and Records Increasing amounts of public information are now contained in electronic format, rather than on paper. Public disclosure laws apply to all such data, raising complex issues which will need to be sorted out in the coming years. For instance, to what extent is a city (read all city, county, state, taxing district and school offices staffs) required to maintain copies of its electronic data? Deletion of data can be accomplished with a keystroke, but not all city employees and elected officials are aware of the laws concerning retention and destruction of public records. (There is a brief review of this issue in the final chapter of this publication.)

Do E-mail records need to be retained, and disclosed upon request?

Although the State Archivist's position is that brief phone messages are "non-records" and can therefore be disposed of as soon as they have served their purposes, what about E-mail sent between city employees and city officials, or E-mail received from outside sources which relates to city business?

E-mail can also be more than just a brief message, particularly if a file is attached. Some cities have adopted specific policies concerning disclosure of electronically formatted public records, and some cities have adopted policies concerning the use of E-mail. Appendix A contains an article concerning disclosure of electronic public records, and Appendix B contains sample disclosure policies and ordinances.

Electronic data transfer makes it possible for citizens to quickly and inexpensively access public information made available through electronic bulletin boards or at Internet-type sites. With the rapid expansion of electronic data technology, it is expected that efficient and inexpensive access to public records will eventually become commonplace, and perhaps statutorily required.

The state legislature formed a Public Information Access Policy Task Force in 1994 to examine the issue of providing broad public access to government records by electronic means. After reviewing the recommendations of the task force, the legislature passed a bill strongly encouraging expansion of electronic access to public records.

Broad public access to state and local government records and information has potential for expanding citizen access to that information and for improving government services.

Electronic methods for locating and transferring information can improve linkages between and among citizens, organizations, businesses, 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...