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Summer School for Public Records: Public Records Act Training Now Required By Law, as Disclosure Requirements Continue to Develop
Public Policy and Political Matters
Beginning July 1, 2014, a new law requires certain public officials and employees in Washington to obtain regular training on the Public Records Act, records retention laws, and the Open Public Meetings Act.  Public officials, employees, and agencies should be aware of these new requirements, described below in further detail.
What?  In March of 2014, the Washington State Legislature passed the Open Government Trainings Act (the “Act”).  See Laws of 2014, ch. 66.  This Act requires certain public officials and employees to obtain regular training regarding their legal duties under open government laws.  The goal of the Act is the promotion of simple and cost-effective training programs to ensure the public is better served, to reduce inadvertent violations of open government laws, and to provide cost savings to agencies as a result.
Who?  There are three classes of public officials and employees who must obtain regular training under the Act:  First, all designated records officers must obtain training on the Public Records Act and records retention laws.  Second, each “local elected official and statewide elected official” and any “person appointed to fill a vacancy in a local or statewide office” must obtain training on the Public Records Act and records retention laws.  Third, every “member of the governing body of a public agency” must obtain training on the Open Public Meetings Act.
When?  Each person subject to training requirements must complete initial training no later than 90 days after assuming his or her relevant duties or responsibilities, followed by recurring “refresher training” every four years or less.
How?  There are no specific requirements for trainings, except that Public Records Act trainings must be consistent with the Attorney General’s model rules for compliance with the Public Records Act.  The Attorney General’s Office is authorized to provide information, technical assistance, and training under the Act.  Pacifica also offers efficient and effective training sessions designed to ensure awareness of all relevant legal requirements, tailored to each participating official, employee, or agency.
Disclosure Requirements Continue to Develop
Even absent legal requirements, regular training in this area remains essential.  For example, two recent decisions from the Washington Supreme Court demonstrate the continuing development of disclosure requirements under the Public Records Act (“PRA”).  These cases address the production of information in electronic databases and the application of the PRA’s numerous exemptions from required production.
In Fisher Broadcasting-Seattle TV LLC v. City of Seattle, No. 87271-6 (Wash. June 12, 2014), the Court addressed production of information contained in electronic databases.  The Court rejected the argument that compiling electronic data related to police dashcam videos was not required because it would have necessitated the creation of a new record.  The Court observed that while the PRA generally does not require a responding agency to create new records, electronic information in a database does qualify as an existing public record, and thus, such data must be produced if responsive or even partially responsive to a public records request.  At the same time, the Court acknowledged that in the context of electronic data, the distinction between creating a new record and producing an existing record might be blurry and “turn on the specific facts” in each case.  As a result, requests for data queries or electronic data should be scrutinized in this light going forward to determine whether the request calls for the creation of a new record or arguably requires production of existing electronic data.
In Resident Action Council v. Seattle Housing Authority, No. 87656-8 (Wash. Jan. 10, 2014, as amended on denial of reconsideration), the Court addressed how agencies should determine whether any of the PRA’s exemptions from required production apply to a given public records request.  The Court observed that there are over 140 exemptions in the PRA and explained that there are various types of PRA exemptions—some apply categorically to certain types of records, while others apply only if a particular privacy or governmental interest is threatened in a given case, and some apply to entire records, while others apply only to information contained in records.  The Court also explained that all exemptions are subject to the general rule that production is required if redaction renders any and all exemptions inapplicable.  To assist agencies in navigating all the PRA’s varied exemptions, the Court described in detail the “indispensable steps” each agency should take, and even provided a flowchart visually representing these steps (a copy of which is provided below).  Public agencies should continue to familiarize themselves with the relevant exemptions that might apply to their records and train personnel in the steps to be taken in each case to determine whether such exemptions apply (usually working in conjunction with your public records officer).
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