New PRA Decision: Good Procedure Nets Good Result

The recent court of appeals decision in Benton County v. Zink holds a number of lessons to be learned regarding procedures for dealing with electronic records and developing an effective strategy for dealing with a litigious requestor.

The request in this case was so voluminous that the county informed the requestor that it might take seven years to complete! The requestor wanted all responsive documents provided in electronic format. Although many of the documents were in electronic format, a large number of them needed to be redacted due to applicable exemptions, which required the county to first create paper copies for the redactions. The county has a policy that provides that when electronic records need to be redacted, it is under no obligation to provide the records in electronic format. The county also has a policy that, when more than 25 copies are being requested, it can have a private company do the copying and then pass on the cost to the requestor.

Applying its policies, the county informed the requestor that it had no obligation to take the redacted paper copies and scan them back into electronic format, but it offered to accommodate the requestor by having an outside vendor scan the documents back into electronic format at 25 cents per page, the lowest quote from three outside vendors. Electronic records that did not need to be redacted were provided to the requestor in electronic format.

The requestor was unhappy with the county’s charges and with its refusal to create the electronic records from the redacted paper copies without using an outside vendor. In several communications, the requestor made threats to take the county to court over its alleged violations of the PRA. The county decided to pursue a declaratory judgment action rather than wait for potential per diem costs to accumulate. That strategic decision enabled the county to obtain guidance from the court and minimize potential penalties.

The trial court approved the county’s procedures and, on appeal, the court of appeals affirmed the trial court. Citing prior case law, the court of appeals emphasized that “an agency is not required to create new public records by scanning properly redacted paper copies of records into an agency's server.” (Emphasis in original.) And, the court held that the county could charge the actual costs – those charged by the vendor – in providing these records in electronic format.

So, these lessons are illustrated in this case:

1. There is no requirement to create a new record by scanning hard paper copies into electronic format (though jurisdictions commonly do, particularly on small requests, in an effort to provide the fullest possible assistance to PRA requestors);
2. The costs of sending records to an outside vendor for copying or for scanning into electronic format can be passed on to a requestor; and
3. When unsure of whether you are following proper PRA procedures and your agency is threatened with litigation, it may be prudent to seek direction from the courts. The legal process can include a more typical action under RCW 42.56.540 to determine whether records are exempt, or, as in this situation, a declaratory judgment on broader procedural issues.

This is a brief summary of the case. We encourage a careful reading of the full decision by those who are developing policies or wrestling with issues involving electronic records.

Public records requestors don’t want to be named as a party in a court action, which is sometimes perceived as a way to discourage government openness - by making the PRA process more time-consuming and expensive. And agencies don’t want to resort to court action. But given the potential penalties that can be assessed against an agency for mistakenly interpreting the PRA, seeking direction from the courts can be a sensible course of action.

It’s nice to have a PRA court decision that tells a local government agency that they are doing things right – we need more of those decisions! We encourage public records officers to consult early and often with their legal counsel on PRA issues.

See also: Benton County Municipal Code Ch. 5.14 - Public Records Policies

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