OMW Municipal Law Blog

In West, Division II of the Court of Appeals held that the Department of Natural Resources (DNR) violated the Public Records Act by not responding to West’s public records requests within five business days.  After the DNR received the requests, the assistant public records officer acknowledged receipt of the request the same day.  However, the public records administrator wrote to West eleven days later, stating that the DNR was “in the research phase of the eight records requests” received and that many of the requests could be quite voluminous.  She also asked clarification questions about the request and stated that she required a response to these questions before she could provide a reasonable estimate of time for the DNR’s response. 

 When a public agency receives a public records request, it must within five business days (1) provide the record; (2) provide an internet address and link on the agency’s web site to the specific records requested; (3) acknowledge receipt of the request and provide a reasonable estimate of the time the agency will require to respond to the request; or (4) deny the public record request.  RCW 42.56.520.  In this case, although the DNR acknowledged receipt of the request within five business days, failure to include a reasonable estimate of the time to respond resulted in a violation of the PRA.  Despite the DNR’s arguments that the PRA does not provide for a stand-alone remedy for failure to strictly comply with the five-day requirement, the court remanded the case to the trial court to assess an attorney fee and penalty award for the violation.

 However, the court also held that the DNR did not violate the Public Records Act because it failed to disclose a document that was inadvertently lost prior to the time the request was made.

In Gendler v. Batiste, the Court of Appeals held that the Washington State Patrol (WSP) was required to disclose historical bicycle accident records of accidents occurring on Seattle’s Montlake Bridge.  The requestor had suffered serious injuries when his bike tire became wedged in the bridge’s grating.  The requestor suspected that the bridge had been unsafe for cyclists since 1999 when the State replaced the bridge decking, and therefore, he sought records of other bicycle accidents from the WSP.  The WSP claimed that these records were exempt from public disclosure under federal law, 23 U.S.C. § 409, unless the requestor agreed not to use the information in litigation against the State. 

Under the Federal Highway Safety Act, states are required to identify and correct high-collision locations by collecting traffic records of accident locations, injury types, and environmental conditions.  Section 409 of the Act protects states from tort liability created by the increased self-reporting of hazardous collision data and provides that reports or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites “shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed” in such reports or data.  The WSP argued that its police traffic collision reports fell under § 409 protection because it provided and WSDOT collected the data for the purposes of identifying and correcting high-collision locations. 

The court disagreed with the WSP, relying heavily upon Pierce County v. Guillen, 537 U.S. 129 (2003), a previous U.S. Supreme Court case reviewing the application of § 409 to Washington’s Public Records Act.  Guillen held that § 409 was inapplicable to information compiled or collected for purposes unrelated to identifying locations and priorities for improvements on the basis of crash experience pursuant to federal law.  The WSP is required to prepare accident reports on state highways under RCW 46.52.060, which the court considered an independent statutory obligation.  Because the WSP did not prepare or use the reports for Federal Highway Safety Act purposes, the protection offered by § 409 did not extend to the WSP by virtue of the fact that it designated WSDOT as its records custodian.  Therefore, the court concluded that while WSDOT was protected by § 409, the WSP was not because it prepared the accident reports for ordinary law enforcement purposes and not for purposes of complying with the Federal Highway Safety Act.

This case should have limited application to municipalities.  First, § 409 does not exempt accident reports from disclosure completely, but only provides that the reports or data cannot be admitted as evidence in a subsequent lawsuit for damages.  Section 409 is not a basis for withholding or redacting documents pursuant to a public records request; the WSP only tried to require the requestor to certify that he would not use the documents in a subsequent lawsuit prior to disclosure.  Second, there should be very limited circumstances in which a municipality is generating or compiling accident reports for Federal Highway Safety Act purposes.  If the reports or data are compiled or collected for unrelated purposes and are held by agencies that are not pursuing Federal Highway Safety Act purposes, § 409 protection will not apply at all.  Simply forwarding accident reports to WSDOT will not protect the documents in a subsequent proceeding.

The case is available here.

By Charles D. Zimmerman & Julie K. Norton

On May 11, 2010, the Division II Court of Appeals issued a decision in Kitsap County Prosecuting Attorneys Guild v. Kitsap County, No. 39196-1-II, confirming that an award of attorneys fees, costs, and penalties under the Public Records Act (“Act”) is mandatory if a court determines that the government agency wrongfully withholds or fails to disclose public records.

 In Kitsap County, the Kitsap Sun (the “Sun”) filed a public records request on July 21, 2008 with Kitsap County (the “County”) requesting a database of County employees containing the employees’ names, number of years of employment with the County, department assigned to within the County, job title, office phone number, annual pay rate, and town of residence.  On July 25, 2008, the County sent the Sun a “five day letter” acknowledging that it received the Sun’s request. The County stated that “[a]ll documents responsive to this request will be reviewed and prepared for release.  We hope to release these documents no later than  August 8, 2008.”  

On August 8, 2008, the County released all of the requested information except for the employees’ towns of residence.  At the time of release, the County has still not determined whether the employees’ towns of  residence were exempt from disclosure.  In a letter to the Sun, the County stated in part:

 Under the [PRA], residential addresses of public employees and volunteers are exempt from inspection and copying.  See RCW 42.56.250.  It is not clear to the County whether “town of residence” is included within the meaning of “residential  address.”

 The County is taking action to determine whether County employees object to the public release of their “town of residence”.  If employees consider the release of their town of residence to be a violation of the [PRA] or an invasion of privacy then the County may file a declaratory judgment action and ask the court to rule whether employees’ “town of residence” is exempt from public disclosure.

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