With attorneys fees and fines of up to $100 per day for improperly following the Public Records Act, every public school in Washington needs to keep up to speed on the law. Earlier this year, the Washington Supreme Court clarified that if an agency withholds records pursuant to an exemption from the Public Records Act, the agency's response is not complete until it provides a privilege log identifying the individual records it was withholding. Until a response is complete, the one year statute of limitations to challenge the response does not start to run.
In Rental Housing Association of Puget Sound v. City of Des Moines, the Rental Housing Association (RHA) made a request to the City of Des Moines, WA for records relating to a crime free rental housing program that the City adopted. In August 2005, the City responded with documents and a cover letter generally describing the records that it was withholding pursuant to exemptions. It did not provide a privilege exemption log describing individual documents.
The RHA responded, demanding disclosure of some of the documents that it did not believe fell under exemptions. The RHA also demanded a privilege log describing each withheld document and the basis for withholding the document. After several months of communication and additional requests for information, the City produced a privilege log regarding the withheld documents from the RHA's first request. The RHA responded, claiming that the City's log was missing necessary details including authors, recipients, and other details. The RHA claimed, too, that several documents were not eligible for exemption under the Public Records Act. When the City refused to provide any additional records, the RHA filed suit in January 2007. More wrangling and an additional records request ensued.
The trial court granted the City's motion to dismiss the lawsuit on the basis that the RHA failed to timely challenge within the one year statute of limitations set forth in RCW 42.56.550(6). The trial court reasoned that the statute of limitations was triggered when the City sent the first letter to the RHA in August 2005.
The Washington Supreme Court disagreed and reinstated the lawsuit. Relying, in part, on its decision in Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 884 P.2d 592 (1994), the Court reaffirmed its position that agencies cannot engage in "silent withholding" or "failing to reveal that some records have been withheld in their entirety." Such practices give requesters the "misleading impression that all documents relevant to the request have been disclosed" and do not allow courts to evaluate the claimed exemption. The Court then pointed out that the Washington Administrative Code requires a brief explanation of withholding when an agency claims an exemption. One way to meet that requirement is to provide a detailed privilege log that "identifies the type of record, its date and number of pages, and the author or recipient of the record (unless their identity is exempt). The withholding index need not be elaborate but should allow a requester to make a threshold determination of whether the agency has properly invoked the exemption." WAC 44-14-04004.
Examining whether the City met its burden and thereby started the statute of limitations period, the Court ruled that it did not:
The City's reply letter to the RHA on August 17, 2005, was insufficient to constitute a proper claim of exemption and thus did not trigger the one-year statute of limitations under RCW 42.56.550(6). The City's August 17, 2005 reply letter did not 1) adequately describe individually the withheld records by stating the type of record withheld, date, number of pages, and author/recipient or (2) explain which individual exemption applied to which individual record rather than generally asserting the controversy and deliberative process exemptions as to all withheld documents.
The Court rejected the argument raised by the Attorney General's office that the requirement of a privilege log to trigger the statute of limitations would generate uncertainty because the claim of exemption would rest on whether the requester deemed the description sufficient, not on the bright line date that the exemption was asserted. The Court responded that the Public Records Act, not the requester's preference, controls when a claim of exemption is validly made:
Without the information a privilege log provides, a public citizen and reviewing court cannot know (1) what individual records are being withheld, (2) which exemptions are being claimed for individual records, and (3) whether there is a valid basis for a claimed exemption for an individual record. Failure to provide the sort of identifying information a detailed privilege log contains defeats the very purpose of the [Public Records Act] to achieve broad public access to agency records. RCW 42.56.030. In this regard, requiring a privilege log does not add to the statutory requirements, but rather effectuates them. See RCW 42.56.210(3).
Accordingly, the City did not state a proper claim of exemption to trigger the one-year statute of limitations until it provided a privilege log to the RHA.
Privilege logs are not difficult to create, but do require some skillful crafting when describing the subject matter of the documents being withheld. A good description must contain the proper balance of providing enough information to support the claimed privilege, but not so much information that the privilege is waived. It is apparent from this recent lawsuit, however, that public entities face increased exposure if they fail to provide a privilege log (artfully drafted or not) when responding to a records request. The costs of non-compliance are high -- attorneys fees and costs will be awarded, and the court may also impose fines of $5-$100 per day -- schools should review their policies and make sure that they are prepared to meet this challenge.
