July 2012 Bar Bulletin
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July 2012 Bar Bulletin

Freedom of Information - The Washington Way

By Matthew R. King


The Public Records Act (PRA) "is a strongly worded mandate for broad disclosure of public records."1

Courts are directed to take into account the Act's policy "that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others," when ruling on PRA matters.2 "The Act's disclosure provisions must be liberally construed, and its exemptions narrowly construed."3 The Act expressly declares, "[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know."4

"Public record" is a broadly defined term, including, "any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics."5 It has long been recognized that administrative inconvenience or difficulty does not excuse strict compliance with public disclosure obligations.6 But this is counterbalanced with the rule that, "[a]n agency has no duty to create or produce a record that is nonexistent."7 The record sought must also be reasonably identifiable in the PRA request.8

In refusing to produce documents in response to a PRA request, the agency bears the burden of proving that the refusal "is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records."9

Agencies have a duty to provide "the fullest assistance to inquirers and the most timely possible action on requests for information."10 In other words, "[t]he [PRA] requires all state and local agencies to disclose any public record upon request, unless the record falls into the specific exemptions" listed in the statute.11 Federal law may also provide various exemptions.

A requestor is entitled to judgment as a matter of law if the court determines that the withheld record or portion of a record "should have been disclosed on request,"12 or that some other violation of the Act occurred.13 "Subsequent events do not affect the wrongfulness of the agency's initial action to withhold the records if the records were wrongfully withheld at that time."14

A show cause procedure is the usual method of resolving litigation under the PRA.15 Numerous cases have been fully resolved by holding a show cause hearing with entry of a written order and judgment thereon.16

The format of a show cause procedure lies within the discretion of the court. The Act specifically authorizes the court to consider the issues solely on the basis of affidavits.17 The court may also conduct in camera review of documents to determine whether they are exempt.18 Another option is an evidentiary hearing, using testimony in an abbreviated trial procedure.19

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