Academic journal article Washington Law Review

Procedural Rules under Washington's Public Records Act: The Case for Agency Discretion

Academic journal article Washington Law Review

Procedural Rules under Washington's Public Records Act: The Case for Agency Discretion

Article excerpt

Abstract: Voters adopted Washington's Public Records Act (PRA) in 1972 as part of a broader ballot measure to enhance openness in state government. The PRA requires state government agencies, including statewide agencies and municipalities, to establish procedures so that the public can request copies of records agencies generate. The PRA exempts certain records from disclosure, and other statutes and case law supply additional exemptions. When an agency refuses to disclose records, the requester may ask a court to determine whether an exemption applies. If no exemption applies, the court may compel disclosure of the records and impose monetary penalties against the non-compliant agency, including attorney fees. Under the PRA. courts review denials de novo and in light of legislative intent, erring on the side of broad public access. In addition to reviewing denials, courts have recently been asked to consider whether an agency's procedural rules under the PRA are reasonable. In analyzing procedural rules, some courts have applied the same broad interpretation used for substantive PRA questions, refusing to presume that an agency's procedural regulations are valid despite administrative law and municipal law doctrines requiring such a presumption. As a result, courts have imposed heavy penalties on public agencies at great taxpayer expense. This Comment argues that courts should presume an agency's procedural rules adopted for purposes of the PRA are valid as long as they are consistent with the statute's mandate.

INTRODUCTION

Washington's Public Records Act (PRA)1 is a "strongly worded mandate for broad disclosure of public records." Adopted in 1972, the PRA gives interested members of the public the opportunity to access documents reflecting the inner workings of state and municipal agencies. The PRA requires agencies to make certain records available for inspection and copying, subject to limitations in the PRA itself and rules adopted by the agencies themselves.4 When an agency denies access to a record based on one of the PRA's disclosure exemptions, the requester may seek judicial review ofthat decision.5 In reviewing agency denials, courts have generally been mindful of the Washington Legislature's declared intent to ensure broad access to public records.6 As a result, courts construe the PRA's disclosure provisions broadly and its exemptions narrowly.

Historically, courts focused primarily on interpreting the PRA's disclosure and exemption provisions.7 Only recently have litigants asked courts to consider the reasonableness of agency procedural rules and policies adopted to protect agency functions.8 Faced with difficult facts and lacking clear guidance, state courts have taken different approaches to interpreting agency rules. As a result, some courts have imposed large awards against agencies, including attorney fees and daily statutory penalties. Taxpayers, in turn, ultimately pay these penalties through increased burdens on agency budgets.9

This Comment argues that, unlike the courts' approach to interpreting the substantive disclosure and exemption provisions of the PRA, courts should defer to an agency's own determination that its PRA procedures are reasonable. Part I discusses the PRA's history and relevant operative provisions. Part II examines the statutory mandate the PRA imposes on agencies, including a duty to adopt procedural rules as well as the duty to disclose records. Part III looks at agency procedural rules under the PRA in the broader context of administrative and municipal law. Part IV examines Washington courts' contradictory approaches to interpreting agencies' procedural rules under state administrative procedure law. Part V argues that, although the voters and the Legislature created a broad mandate for disclosure of public records, the breadth of that mandate should not overcome the rule of judicial deference to an agency's interpretation of its own procedural rules. …

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