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Municipal Research News - Public Records Act / Open Public Meeting Act - Some Basics and Some Advice
Public Records Act
Open Public Meeting Act
Some Basics and Some Advice
The legal staff at Municipal Research and Services Center (MRSC) answers numerous questions relating to the Public Records Act (PRA) and the Open Public Meetings Act (OPMA). This is to be expected because of the large number of records and meetings that are necessary to keep our local governments functioning. While some of the questions we answer are new, others are variations of previously addressed issues. Some of the recurring questions indicate that many local officials may still be struggling with the requirements of the two acts.
Here are some examples of issues causing concern.
Electronic records are public records and need to be disclosed and retained following the same basic rules that apply to paper records. So, all e-mails sent or received by city and county officials and their staffs, whether they are using their office or home computers, are public records if they deal with any aspect of local government affairs. Has your jurisdiction adopted a process to make sure that all those electronic communications are saved so they can later be retrieved if there is a request for disclosure?
Disclosure of employee misconduct records can get complicated. Understandably, newspapers often want to obtain all those records. When faced with such a records request, keep in mind that the PRA clearly states that your agency cannot withhold documents merely because the events covered by the records are embarrassing to the agency or to an employee. See RCW 42.56.550(3). If the conclusion of an investigation is that the alleged misconduct did not occur, the name of the employee will generally be exempt from disclosure. There was a significant court decision in 2005 dealing with the disclosure of records relating to public school teachers accused of sexual misconduct: The court's analysis can help you and your legal counsel determine where the boundary lies between the public's right to know and the privacy rights of public employees. See Bellevue John Does v. Bellevue School District, 129 Wn. App. 832 (2005).
Law enforcement agency files contain lots of records that are exempt from disclosure. Many of you routinely deal with requests for police reports, which are generally exempt from disclosure until the investigation is complete and the case has been sent on to the prosecutor. Law enforcement agencies also have access to criminal "rap sheet" information containing arrest data and other information that may be prohibited from disclosure by the criminal history records statutes found in chapter 10.97 RCW. Nevertheless, many law enforcement records, such as police officer personnel files, time sheets, procedure manuals, etc., are covered by the same exemption rules that govern the records of other local government departments.
A 2006 amendment to one PRA statute, RCW 42.56.250(3), now exempts from disclosure the e-mail addresses, cell phone numbers, emergency contact information, and dependent information of employees and volunteers of a local government agency.
The Attorney General's office has issued "Model Rules on Public Disclosure" that local governments can consider for adoption. The model rules provide a practical and detailed overview of recommended procedures for responding to disclosure requests. The model rules are now chapter 44-14 of the Washington Administrative Code (WAC). The model rules may also be found as "Appendix D" in MRSC's 2006 publication, Public Records Act, available through the MRSC Website. It is anticipated that additional model rules dealing with electronic records may soon be issued. MRSC will keep you informed.
Under the OPMA, when voting on an issue, please remember, the public has a right to know how each of their elected representatives votes; there can be no secret ballots. Similarly, though an elected legislative body may be allowed to discuss certain issues in an executive session, it may not take any action, including a formal or informal vote, regarding those issues in the closed session.
When does a series of e-mails between councilmembers cross the line and violate the OPMA? This is now one of our most frequently asked questions. Although the issue merits a lengthy discussion, it can be distilled to this: If a quorum of the governing body communicates by e-mail, exchanging views on an issue that should be discussed in an open public meeting, there is a potential violation. Because there are increasing requests for disclosure of councilmembers' e-mails, this is an issue that should not be ignored. To be safe, councilmembers or county commissioners sending information to all the other members of the legislative body should consider adding a reminder that the information is being sent for informational purposes only and request that responses not be directed to the other members. Confused? Ask your legal counsel for advice, or contact one of the MRSC attorneys.
Last year the city of Snoqualmie became a pioneer in e-government by holding the first electronic meeting of a legislative body in this state. The city councilmembers held their council meeting using computer communication – none of the councilmembers were in the same room. Using chat room communication software that allowed all the members to see on their screens what was being typed by other members, they discussed and decided public issues. Members of the public were able to "view" the meeting either at their own computer or on a projection screen at the usual council meeting place. There is no statute that specifically allows such online meetings, but arguably the process meets the basic requirements of the OPMA. This might be a practical method of holding a public meeting if there were a serious flu epidemic and gatherings of the public were being discouraged for health reasons.
A legislative body is required to keep minutes of all their public meetings, even if the meeting is designated as a retreat or study session and no votes are taken. See RCW 42.32.030. The minutes of such a meeting should at least show the date, time, and location of the meeting; which members were present; and what issues were discussed.
The Open Public Meetings Act allows the public to watch their representatives discuss and decide public issues. The Public Records Act allows the public to review the records of state and local governments, with some exceptions, so that the detailed workings of our public agencies are open to examination. If these two Acts did not exist, the public would have no way of knowing whether elected officials and public employees were properly conducting the public's business.
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