Public agency officials responsible for responding to public records requests for texts, emails, and other electronic records stored on personal smartphones and computers can breathe a sigh of relief. In Forbes v. City of Gold Bar (pdf), the Court of Appeals affirmed the dismissal of a requester’s lawsuit filed against the City of Gold Bar under the Public Records Act (“PRA”), chapter 42.56 RCW. In so doing, the Court of Appeals reaffirmed the principle that the responding agency’s search process for responsive documents – not the results of such search — is reviewed for reasonableness. Further, the Court clarified that agency affidavits concerning the responsiveness vel non of documents are accorded a strong presumption of good faith. Where such affidavits are nonconclusory, include the search terms used by the responding agencies, and identify the places and devices searched, and where a requester fails to articulate a specific reason why an in camera review is necessary, a trial court may rule based solely on such affidavits.
During a 10-month period between May 2009 and March 2010, Susan Forbes made three broad requests under the PRA to the City of Gold Bar for the production of records. The scope of these requests extended to documents and communications generated on City employees’ personal computers and smartphones and stored on those devices and several different commercial servers.
These requests came in conjunction with dozens upon dozens of other PRA requests. Because of the volume of pending requests, the City’s production was delayed. Eventually, the City retained a consultant to organize the large amounts of data stored in various locations and was forced to hire and restaff employees specifcially to respond to Forbes’ requests. In 2010 alone, the City spent 12 percent of its income responding to public records requests.
The City periodically released records to Forbes as records became available. In 11 separate disclosures, the City produced more than 28,000 records. It also updated Forbes on its progress and notified her that certain emails reviewed would not be produced because they were purely personal and therefore not responsive to her request but could be viewed on a CD if she wished.
Dissatisfied with the amount of time the City took to release records and the City’s failure to create a log of records the City had withheld, Forbes sued the City. The City subseuqnetly filed a motion for summary judgment, which the trial court granted. Forbes appealed.
The Court of Appeals affirmed.
- Pursuant to RCW 42.56.520, a public agency must respond to a public records request within five days of the request by providing the records, denying the request or providing a reasonable timeframe within which to respond to the request. The statute recognizes that the agency may need additional time to respond because of the need to clarify the request, locate and assemble the requested information, notify third parties, or determine whether certain information is exempt from disclosure.
- Under RCW 42.56.550, an individual who has made a PRA request is entitled to certain judicial relief, including attorney fees, when an agency has not made a reasonable estimate of the amount of time required to respond to the request or when the requester has not received a response within a reasonable amount of time. Further, when reviewing the reasonableness of agency actions, a reviewing court may conduct an in camera review or documents, or it may conduct a hearing based solely on affidavits.
- Standards of reasonableness applied under the federal Freedom of Infomration Act (“FOIA”) apply to agency responses to PRA requests. Correspondingly, FOIA case law provides guidance for interpreting the PRA.
- Judicial review of the reasonableness of an agency’s response focuses on the agency’s search process, not the results of that process.
- Applying these principles, the Court of Appeals ruled (a) that the City’s search was reasonably calculated to uncover all relevant documents and (b) that the trial court did not err in conducting an in camera review of withheld documents becuase such review is not mandatory, the affidavits offered by the City established it conducted an adequate search and were uncontradicted.