This chapter addresses laws that relate to public records in libraries. Many general questions can be answered by consulting the in-depth resource, Open Government Resource Manual, which cites the laws and subsequent legal interpretations. Specific questions should be addressed to your library’s legal counsel.
In 1972, the voters in the state of Washington adopted Initiative 276, which requires that most records maintained by state, county, and city governments, and by all special purpose districts, be made available to members of the public.
Because the public records disclosure statutes are sometimes difficult to interpret and are often a source of litigation, the Municipal Research and Services Center (MRSC) has prepared a publication, Public Records Act for Washington Cities, Counties, and Special Purpose Districts, which reviews all of the relevant statutes, exemptions and prohibitions to disclosure, and procedures to be followed when handling a request for disclosure. Another helpful resource is the “Public Records Act” web page from the Washington Coalition for Open Government, which provides links to RCWs, WACs, Attorney General Opinions, and a wealth of other related sources.
Public libraries should follow the Local Government Common Records Retention Schedule (CORE) v. 4.0
(May 2017). Librarians should take note of section 5.2 which specifically addresses library services.
The following sections may be relevant for libraries:
- Bank records, see page 103
- Vouchers, see pages 96-97
- Payroll, see section 3.5 beginning on page 105
- Board minutes, see section 1.10 beginning on page 37.
Records consultants at the Washington State Archives will help narrow that down to specific DANs for categories of records which are not immediately obvious.
Libraries should bear in mind the Public Records Act when drafting policies and procedures to assure that the intent of the law is followed.
Are library trustees required to take any training on public records?
No. Although they are required to have training on open public meetings, they are not required to be trained on public records. However, a board’s staff member or clerk who posts meeting notices and agendas, and maintains minutes, may benefit from training on the open public meetings requirements under the OPMA (Open Public Meetings Act).
Additional information may be found in the Open Government Training Act Q & A and on the Open Government web page from the Washington State Office of the Attorney General.
What are examples of library records that would be considered public records?
As laid out in RCW 42.56.070(3), policies, reports, budgets, and minutes are examples of the types of records a library must make accessible to the public. In addition, statistical information, based on library records, would be considered a public record if it does not readily identify a person.
Are e-mails or photographs considered public records? What about social media such as blogs, wikis, Facebook, and Twitter?
According to the Open Government Resource Manual, Chapter 1, “The definition of a public record (other than a record of the Legislature) contains three elements:
- “… The record must be a writing…. A writing includes not only conventional letters and memoranda, but also emails, videos, photos and computer data.
- “… The writing must relate to the conduct of government or the performance of any governmental or proprietary function. Virtually every document a government agency has relates in some way to the conduct of government business or functions.
- “… The writing must be either prepared, owned, used or retained by the agency. A writing may include data compiled for the issuance of a report (as well as the report itself), even though the agency had not intended to make the underlying data public.”
See also WAC 44-14-03001.
The Washington State Archives provides helpful information on electronic records management, including identifying electronic public records, on their Records Management web page.
What about e-mails or documents related to agency business created by agency employees using their home computers, iPhones, or smart phones?
As stated in WAC 44-14-03001:
“Sometimes agency employees work on agency business from home computers. These home computer records (including e-mail) were ‘used’ by the agency and relate to the ‘conduct of government’ so they are ‘public records.’ … However, the act does not authorize unbridled searches of agency property. If agency property is not subject to unbridled searches, then neither is the home computer of an agency employee. Yet, because the home computer documents relating to agency business are "public records," they are subject to disclosure (unless exempt). Agencies should instruct employees that all public records, regardless of where they were created, should eventually be stored on agency computers. Agencies should ask employees to keep agency-related documents on home computers in separate folders and to routinely blind carbon copy ("bcc") work e-mails back to the employee's agency e-mail account. If the agency receives a request for records that are solely on employees' home computers, the agency should direct the employee to forward any responsive documents back to the agency, and the agency should process the request as it would if the records were on the agency's computers.”
The Washington State Archives includes a link to information about electronic public records on their Records Management web page.
The Municipal Research and Services Center of Washington (MRSC) has created a helpful PowerPoint, Electronic Communications and Social Media, that is applicable to public agencies.
What are some of the categories of records that must be made available to the public?
According to RCW 42.56.070(3), the categories of records that must be available to the public include:
(a) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(b) Those statements of policy and interpretations of policy, statute, and the Constitution which have been adopted by the agency;
(c) Administrative staff manuals and instructions to staff that affect a member of the public;
(d) Planning policies and goals, and interim and final planning decisions;
(e) Factual staff reports and studies, factual consultant’s reports and studies, scientific reports and studies, and any other factual information derived from tests, studies, reports, or surveys, whether conducted by public employees or others; and
(f) Correspondence, and materials referred to therein, by and with the agency relating to any regulatory, supervisory, or enforcement responsibilities of the agency, whereby the agency determines, or opines upon, or is asked to determine or opine upon, the rights of the state, the public, a subdivision of state government, or of any private party.
Is a public agency required to provide some sort of finding aid for those records?
RCW 42.56.070 requires an agency to provide an index to its records issued, adopted, or promulgated after January 1, 1973, or to publish a formal order explaining why it is unduly burdensome or would interfere with operations.
Does the Public Records Act PRA) apply to court case files?
No, court files and judges’ files are not subject to the act. Access to such files is governed by court rules and common law. (WAC 44-14-01001.) See also Open Government Resource Manual, Chapter 1.3.
Is it permissible for an agency to provide lists of individuals that would be used for commercial purposes?
RCW 42.56.070(9) prohibits agencies from giving, selling, or providing access to lists of individuals that are requested for commercial purposes unless specifically authorized or directed by law. Chapter 1 of the Open Government Resource Manual states, “The limitation on commercial-use requests has three elements:
- List of individuals;
- For a ‘commercial purpose;
- Where the disclosure of the information is not ‘specifically authorized or directed by law.’”
However, RCW 42.56.070(9) provides for the following exception:
“PROVIDED, HOWEVER, That lists of applicants for professional licenses and of professional licensees shall be made available to those professional associations or educational organizations recognized by their professional licensing or examination board, upon payment of a reasonable charge therefor….”
WAC 44-14-06002(6) states that “An agency may require a requestor to sign a declaration that he or she will not put a list of individuals in the record to use for a commercial purpose. This authority is limited to a list of individuals, not a list of companies. A requestor who signs a declaration promising not to use a list of individuals for a commercial purpose, but how then violates this declaration, could arguably be charged with the crime of false swearing. RCW 9A.72.070.”
Are there laws related to the retention of public records?
Chapter 1.4 of the Open Government Resource Manual states that “
tate laws require state and local agencies to retain certain records for varying lengths of time depending on the content of the record…. However, if an agency keeps a record longer than required - that is, if the agency still possesses a record that it could have lawfully destroyed under a retention schedule - the record is still a ‘public record’ subject to disclosure.” WAC 44-14-03005 provides additional information about the retention of records. Retention schedules are available on the Washington State Archives website.
What are some of the types of records that are exempt from public disclosure?
Employment and Licensing:
RCW 42.56.250 provides for exemptions related to employment and licensing, including:
- Test and exam questions;
- All applications for public employment;
- Public employees and volunteers:
- Home addresses;
- Personal telephone numbers, including cell phones;
- Personal e-mail addresses;
- Social security numbers;
- Emergency contact information held by any public agency in:
- Personnel records;
- Public employment related records
- Volunteer rosters;
- Mailing lists.
- Dependents of public employees and volunteers:
- Dates of birth;
- Residential addresses;
- Personal telephone numbers, including cell phones;
- Personal e-mail addresses;
- Social security numbers;
- Emergency contact information held by any public agency in
- Personnel records;
- Public employment related records
- Volunteer rosters
- Mailing lists.
- Investigative records compiled by an employing agency conducting a current investigation of a possible unfair practice under RCW 49.60 or of a possible violation of other federal, state, or local laws prohibiting discrimination in employment.
RCW 42.56.230 provides exemptions for personal information, including:
- Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy. As an example, information in employee files evaluating public job performance would be exempt unless there is misconduct;
- Credit card numbers, debit card numbers, electronic check numbers, card expiration dates, or bank or other financial account numbers, except when disclosure is expressly required by or governed by other law;
- Documents and related materials and scanned images of documents and related materials used to prove identity, age, residential address, social security number, or other personal information required to apply for a driver’s license or identicard.
RCW 42.56.280 provides exemption from public disclosure for: Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended. However, once a record is cited by the agency in connection with any agency action, it is not exempt. The Open Government Resource Manual, Chapter 2 states that “the exemption applies only to documents that are part of the deliberative or policy-making process; records about implementing policy are not covered…. For this reason, inter-agency (as opposed to intra-agency) discussions probably are not covered by this exemption…. Matters that are factual, or that are assumed to be factual for discussion purposes, must be disclosed….”
RCW 42.56.290 provides exemption from public disclosure for records which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.
Vanpool, Carpool, or Ride-Sharing; Paratransit Programs:
RCW 42.56.330 exempts:
- The names, home addresses, home phone numbers, and other individually identifiable records held by an agency in relation to a vanpool, carpool, or other ride-sharing program service. However, these records may be disclosed to other persons who apply for ride-matching services and who need that information in order to identify potential riders or drivers with whom to share rides;
- Personally identifying information of current or former participants or applicants in a paratransit or other transit service operated for the benefit of persons with disabilities or elderly persons.
Security and Terrorism:
RCW 42.56.420(4) exempts several types of records relating to the infrastructure and security of computer and telecommunications networks:
- Security passwords;
- Security access codes and programs;
- Access codes for secure software applications;
- Security and service recovery plans;
- Security risk assessments;
- Security test results that identify specific system vulnerabilities.
What about library records?
- Any library record, the primary purpose of which is to maintain control of library materials, or to gain access to information, that discloses or could be used to disclose the identity of a library user is exempt from disclosure. RCW 42.56.310;
- Except for public records as defined in RCW 40.14.010 (Preservation and Destruction of Public Records), any records or documents obtained by a state college, university, library, or archive through or concerning any gift, grant, conveyance, bequest, or devise, the terms of which restrict or regulate public access to those records or documents are exempt from disclosure. RCW 42.56.320(4).
What about privacy issues?
The Open Government Resource Manual, Chapter 2 states that “there is no general ‘privacy’ exemption. AGO 1988 No. 12 Since ‘privacy’ is not a stand-alone exemption, an agency cannot claim RCW 42.56.050
[invasion of privacy]
as an exemption. …A violation of a person’s ‘privacy’ would occur under RCW 42.56.050 when the disclosure of information ‘(1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.’ This two-part test requires the person seeking to prevent disclosure to prove both elements.”
What about attorney-client privilege?
Records or portions or records covered by the attorney-client privilege are exempt from disclosure. RCW 5.60.060(2). For additional information, see WAC 44-14-06002(3).
What about liability?
A good faith response in releasing a public record absolves the library, its trustees or staff from liability arising from the disclosure. (RCW 42.56.060).
However, the Open Government Resource Manual states that “…the protection from liability does not apply to an agency’s failure to disclose information. A court may award penalties and attorneys’ fees under RCW 42.56.550(4) to a prevailing party even if the agency acts in good faith.”
Does a person requesting a public record need to give a reason for the request?
Any person may make a request to inspect and to copy a public record. The agency may not ask the person why they are making the request. (RCW 42.56.080) Chapter 1 of the Open Government Resource Manual expands upon this, stating, “A person making a public records request is not required by the
Act to give a reason for the request, except in the rare instances where the agency needs to know the purpose to determine if the request would violate a statute. … See WAC 44-14-04003(1). Except for commercial uses, release of information may not be limited by the purpose of the request….”
Does the Act specify the way in which requests should be made?
Chapter 1 of the Open Government Resource Manual states, “No particular form of request is required by the Act. …Although an agency may make its own reasonable rules for providing records, its rules must give the ‘fullest assistance to’ requesters and require the ‘most timely action’ in response to requests for records. RCW 42.56.100 The PRA specifically allows persons to make requests by mail, which includes email under current technology.”
Oral requests are permitted, but a written request is advisable for several reasons:
- It confirms the date on which the record is requested;
- It clarifies what is being requested;
- It provides for identification of the requesting party, with address and telephone number;
- Having identifying and contact information will facilitate any requests for clarification by the agency of any ambiguous request and enables the agency to determine if a person has the right to a record that would normally be exempt.
The Open Government Resource Manual notes that some laws outside the PRA require written requests. WAC 44-14-03006 states that a request can be made by mail, e-mail, fax, or orally. It encourages agencies to make their public request forms available on their web sites.
What should a public records request form include?
WAC 44-14-03006 states that the request form should:
- Ask the requestor whether he or she seeks to inspect the records, receive a copy of them, or inspect the records first and then select particular records to copy;
- State that inspection of records is free;
- Provide the per-page charge for standard copies;
- Request contact information for the requestor, such as:
- Phone number;
- Mailing address;
- E-mail address.
Agencies should not require a requester to provide a driver’s license number, date of birth, or photo identification. Although not required, the agency may ask a requester to prioritize the records being requested so that the agency is able to provide the most important records first.
How much information to identify the desired record(s) does the requester need to provide to the agency?
The agency is required to respond to a request for “identifiable public records.” (RCW 42.56.080) The requirement that a record be “identifiable” means that the requestor does not need to know the specific name of a record, but can request documents that relate to a topic. WAC 44-14-04002(2) expands upon this by stating:
“…An ‘identifiable record’ is one that agency staff can reasonably locate. The act does not allow a requestor to search through agency files for records which cannot be reasonably identified or described to the agency. However, a requestor is not required to identify the exact record he or she seeks.”
The WAC further states:
- An “identifiable record” is not a request for “information” in general;
- Agencies are not required to conduct legal research for a requestor.
An agency is not required under the Act to respond to questions or to furnish information that is not the subject of an identifiable public record. However, the agency must “provide for the fullest assistance” to requestors, which may help a requestors to clarify the desired document.
Who should be the point of contact for members of the public who wish to make a request for public records?
As stated in RCW 42.56.580, “each state and local agency shall appoint and publicly identify a public records officer whose responsibility is to serve as a point of contact for members of the public in requesting disclosure of public records and to oversee the agency’s compliance with the public records disclosure requirements. A state or local agency’s public records officer may appoint an employee or official of another agency as its public records officer. Agencies should provide contact information as follows:
- For state agencies: Name and contact information should be published in the state register when the contact is designated. That information is then maintained on the code reviser’s web site for the duration of the designation;
- For local agencies: Name and contact information should be made available in a way that is reasonably calculated to provide notice to the public, including:
- Posting at the local agency’s place of business;
- Posting on its Web site;
- Including it in its publications.
How quickly must agencies respond to requests for public records?
As stated in RCW 42.56.520, agencies must respond to a public records request within five (5) business days of receipt. The response may take the form of:
- Providing the record;
- Providing an internet address and link on the agency’s web site to the specific records requested;
- Acknowledging the request and providing an estimate of the amount of time needed to fulfill the request; or
- Denying the request.
The RCW includes the following Finding (2010 c 69 § 1): “The internet provides for instant access to public records at a significantly reduced cost to the agency and the public. Agencies are encouraged to make commonly requested records available on agency web sites. When an agency has made records available on its web site, members of the public with computer access should be encouraged to preserve taxpayer resources by accessing those records online.”
AG Opinion AGO 1991 No. 6 provides an interpretation of what is meant by “promptly” in responding to requests for public records.
What if a person requesting records cannot access them through the internet?
If the requestor notifies the agency that they are unable to access the records through the internet, the agency must:
- Provide copies of the record; or
- Allow the person making the request to view copies using an agency computer.
Are there specific hours during which agencies must make public records available at their physical locations?
Although RCW 42.56.090 is not specific, stating only that “public records shall be available for inspection and copying during the customary office hours of the agency, … for a minimum of thirty hours per week, except weeks that include state legal holidays, unless the person making the request and the agency … agree on a different time, WAC 44-14-03002 states “If the agency is very small and does not have customary office hours of at least thirty hours per week, the records must be available from 9:00 a.m. to noon, and 1:00 p.m. to 4:00 p.m.”
Are there any provisions for allowing agencies more than five days to respond to a request?
If the response will take longer than five days, it must be based on:
- The need to clarify a request;
- The time required to locate and assemble the information requested;
- The need to notify third persons or agencies affected by the request; or
- The need to determine whether any of the information requested is exempt and if a denial should be made as to all or part of the request.
What recourse does a person making a request have if their request for a public record is denied or if they believe that the time estimated by the agency to fulfill the request is unreasonable?
A requestor who believes that the time estimate made by the library is not reasonable may request the superior court in the county in which the record is maintained to require the library to show that the estimate is reasonable. The burden of proof is upon the agency.
A person who prevails in a court action seeking the right to inspect or copy a public record, or the right to receive a response to a public record request within a reasonable amount of time, shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, the court may award an amount of not less than five dollars and not to exceed one hundred dollars for each day that the person was denied the right to inspect or copy the public record.
May fees be charged to make public records available?
No fees may be charged for the inspection of public records. Nor may a fee be imposed for locating public documents and making them available for copying.
A reasonable fee may be charged for making copies and for the use of equipment to make copies. The fee may not exceed actual costs directly related to the copying. Direct staff time to copy the requested public records may be included in the fee, as well as the cost of paper, toner, cost of the per-page use of equipment, and the cost of shipping or mailing including postage and the envelope or containers. Administrative or overhead costs may not be included unless they are directly attributable.
If the agency has not established a per-page cost, it may not charge more than fifteen cents per page for photocopies of public records or for the use of equipment to photocopy public records. An agency may require a desposit that is no more than 10 per cent of the estimated cost of the total number copies.
RCW 42.56.070(7) notes that agencies must make available to the public a statement of the photocopy costs, and the manner in which the actual per-page cost was determined.
AG Opinion AGO 1991 No. 6 provides additional information on the question of fees and public records.
If a portion of a public record contains information covered by an exemption, can an agency deny the request for the record?
As stated in Chapter 1 of the Open Government Resource Manual, “Agencies are not relieved of their duties to respond to requests for public records because a part of the document is covered by an exemption. An agency must delete or redact only the exempt information and disclose the rest of the document.” Information should be removed only if it violates personal privacy or a vital government interest. (RCW 42.56.210(1))
See WAC 44-14-04004(4)(b)(i) for additional information on redaction and public records.
If police or other authorities ask to see library circulation records, what is the procedure?
As noted above, RCW 42.56.310 exempts library circulation records from inspection or copying without due process. The process that police or others may initiate is described in RCW 42.56.550:
- They may file a motion with the superior court in the county in which a record is maintained, requiring the library to show cause why it refused to allow inspection or copying of a specific record or class of records.
- The superior court must hold a hearing with notice to every person of interest and the library. After the hearing, the court may permit inspection or copying if it is found that the exemption is clearly unnecessary to protect the individual’s right of privacy or any vital government function.
[Not included in RCW 42.56.550]
- The third party to whom the library record pertains may seek injunctive relief to enjoin disclosure of the record. The action may be filed in the superior court where the person resides or where the record is maintained. The library may notify persons named in a record, or to whom a record pertains, that the record is subject to a pending record request under the Act.
[Not included in RCW 42.56.550]
Note: A search warrant is not sufficient because it does not provide for the superior court hearing process with notice to persons of interest and the library.
Has the USA PATRIOT Act overturned all state laws protecting the confidentiality of library records?
The Office for Intellectual Freedom (OIF) of the American Library Association (ALA) includes the following response on their web page, FAQ: USA PATRIOT Act:
“No, the state privacy laws regarding privacy in libraries are still in force, including laws protecting the confidentiality of library records. However, as federal laws, the provisions of the Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act (ECPA), and the statute authorizing National Security Letters can supersede state privacy laws. It is important to remember, however, that state and local law enforcement agencies remain subject to state library confidentiality laws and other laws protecting privacy, and that even the FBI is still required to present a form of judicial process (court order or subpoena) before information can be turned over to the agency. Libraries should consult with their legal counsel to determine precisely under what circumstances their state's library confidentiality law permits the release of user information.”
The ALA Intellectual Freedom: Issues and Resources page contains additional resources relating to the PATRIOT Act and intellectual freedom.