§6.6 WORKING WITH AGENCY EMPLOYEES AND SEARCHING FOR RESPONSIVE RECORDS
One of the most critical steps an agency must take to fully comply with a PRA request is to conduct an adequate search for responsive records. In most cases, however, it may not be possible for a public records officer to physically collect all responsive records. The records custodians (the staff who created or possess the records) will have to help, with oversight from the public records officer.
(1) Informing employees about the request
Agency employees who may possess responsive records must be promptly notified about a PRA request, for at least two reasons. First, they will need time to assess how long it will take them to gather records, so that the five-day estimate can be formulated. Second, they must be instructed not to delete any responsive records. Therefore, even before a request is made, all public agency employees should be aware that:
| (1) | they share the responsibility for PRA compliance and they may be called upon to assist in providing responsive records; |
| (2) | they cannot destroy records once a PRA request has been made for those records; and |
| (3) | work-related records not retained by the agency may still be public records if the records are used to conduct agency business see Mechling v. City of Monroe, 152 Wn.App. 830, 222 P.3d 808 (2009), review denied, 169 Wn.2d 1007 (2010); see O'Neill v. City of Shoreline (O'Neill II), 170 Wn.2d 138, 240 P.3d 1149 (2010); Concerned Ratepayers Ass'n v Pub. Util. Dist. No. 1, 138 Wn.2d 950, 983 P.2d 635 (1999) Employees should consider whether they have public records stored off the agency's computer system, including on personal electronic devices. |
| Comment: | In Nissen v. Pierce County, 183 Wn.2d 863, 878, 357 P.3d 45 (2015), the Supreme Court ruled that records held on personal electronic devices will still qualify as "public records" if the record was created or received by the employee while the employee was "acting within the scope of employment." This includes all types of communications, including text messages on a private cell phone and e-mails in a personal e-mail account. "An employee's communication is 'within the scope of employment' only when the job requires it, the employer directs it, or it furthers the employer's interests.''/^, (citations omitted). Thus, when an employee uses a personal e-mail account to conduct city business, those e-mails will qualify as "public records." To establish that an agency has complied with a PRA request for e-mails held exclusively in an employee's private e-mail account, the employee must produce '"reasonably detailed, nonconclusory affidavits' attesting to the nature and extent of their search." Id. at 885 (citation omitted). |
| Practice Tip: | Any time an agency permits or requires its employees to use personal devices, it creates liability risks for the agency because the agency must be able to produce any "public records" created on private devices but will be dependent on the employee to identify and produce those records. To limit that liability, agencies should adopt policies on permissible uses of employee personal devices and require the prompt transfer of any "public records" created on a personal device to an agency public account to ensure that the agency has access to those public records. See, e.g., 44 U.S.C. § 2911 (federal employees who use private e-mail accounts for agency business must "copy" their agency account on any e-mails the employee sends from that account and forward any e-mails received on that account within 20 days). |
The public records officer should give the following guidance and direction to records searchers:
| (1) | What records should be gathered. Providing a copy of the request often is insufficient. Employees may require a refresher on "what is a public record." In simplest terms, it is any record that in any way pertains to the business of government. See RCW 42.56.010(3). |
| (2) | How and where they should search for records. The type of records being requested will affect the scope of any search. Employees may need to look through hard copy files or electronic files, or both, depending on the scope of the request. If term searching of electronic files is necessary, give employees the search terms and confirm that they understand how to conduct the searches. With respect to where to search, employees should search anywhere that they reasonably would expect to find responsive records. If information discovered in the search leads to other possibilities as to the location where responsive records might exist, these locations should be searched as well. A standard checklist might assist employees to remember all locations they are expected to search. It is also a good practice to ask agency employees if they are aware of any other staff or locations that may have responsive records. |
| (3) | Response expectations. Inform employees when they must provide records by a due date and in what format. The PRA requires that response time frames provided to a requestor be "reasonable." See RCW 42.56.520. |
| Comment: | An "administrative inconvenience" to an agency is not a basis to delay production of responsive records. See Zink v. City of Mesa (Zink I), 140 Wn.App. 328, 337, 166 P.3d 738 (2007). If other workload demands or competing priorities make it difficult to respond within established time frames, the staff person responsible for coordinating assembly of the records requested should be notified immediately to adjust the time frame for response. |
| Comment: | Agencies should keep in mind that records can be provided on an installment basis or after a 10 percent deposit is received. See RCW 42.56.120. |
| Practice Tip: | While adopting internal procedures that govern the steps employees are expected to take to search for records is a best practice, an agency should also make sure it documents employee compliance with those procedures, because the failure to comply with adopted procedures might otherwise provide evidence of bad faith. See Francis v. Wash. State Dep't of Corrs., 178 Wn.App. 42, 313 P.3d 457 (2013). |
Provide staff with clear direction on the format for the responsive records, especially when a request seeks records in native format or with associated metadata. Depending on how a request is worded and what the requestor is seeking, all copies of responsive records may have to be gathered, regardless of whether the content is the same. For example, if a requestor seeks all metadata, records regarding the same subject matter are not necessarily identical. An agency should clarify and not assume that only one copy is responsive to the request.
| (4) | Identifying potentially sensitive records. It is not practical to educate employees about every applicable exemption. But the employees processing the records request may be the only ones who can identify a sensitive record that may be exempt. In situations in which multiple exemptions may apply, instruct employees to flag records that might violate someone's privacy, disclose confidential business information, greatly interfere with an ongoing project, or have direct adverse financial consequences. Finally, they should identify any records they think might put someone's safety at risk. The public records officer can review these flagged records to see if any exemption might apply, working |
