Ever since Washington state voters approved the Public Disclosure Act in 1972, taxpayer-funded entities have been required to provide the public with a wide range of records created at public expense — including court and planning documents, reports and studies, correspondence, and more. But in recent years, thanks mainly to the advent of email technology and the consequent exponential increase in the sheer number of public records — local cities have been grappling with a steep rise in the cost, in both dollars and staff time, of fulfilling requests.
As part of its 2016 draft budget, the City of Edmonds — with three staff members handling public records requests at City Hall and one in the police department — has requested that the city council approve increasing its 3/4 full-time equivalent public records staff to full time. The City of Lynnwood, meanwhile, has recently brought on temporary public records staff and is requesting an additional staff position just to handle police department records requests, and the City of Mountlake Terrace is paying more in legal fees for its city attorney to review the requests and make redactions.
Edmonds City Clerk Passey, who oversees the city’s public records, said public records requests are a hot topic for public entities. “I’m involved in some professional associations, and public records and the growing number of requests are increasingly a matter of discussion, debate and concern,” he said. “More and more cities are struggling to provide enough resources to respond to the need.”
Added Julie Moore, manager of communications and public affairs for the City of Lynnwood: “The challenging part of staffing to process requests is that the workload fluctuates and there is no standard response rate. Some requests are simple and some are very staff intensive and time consuming.”
Mountlake Terrace City Clerk Virginia Olsen said that while her city has not hired additional staff to address public records requests, “we definitely had increased legal fees to review the requests and make redactions, which results in overspending our legal budget each year.”
Under the Public Records Act, government agencies are required to respond to the requester within five business days. If the request is simple, it may be possible to provide the requested information in five days. But for more complex requests, this response could be an acknowledgment, with an opportunity to ask for clarifications, and providing an estimate of how it will take to fulfill.
The biggest impact on public records responses, according to Passey, is email communication. Compared to 50 years ago, when a city was likely to produce a few dozen documents a day, governments now generate “hundreds or thousands of documents per day and that’s simply because we now have an email system,” he said.
“Our archive is growing exponentially because it’s so easy to create documents. So when people ask for records, we’ve got this ever-growing archive that we have to search,” he added.
The 1972 citizens initiative, which has been superseded by the Washington Public Records Act and frequently revised over the past three decades, permits a “reasonable charge” for making paper copies of records. But it doesn’t allow cities to recover expense of searching for records, “and that’s where most of our costs lie,” Passey said. There is also no allowance to charge for scanning records and providing them electronically, “which is what most people want,“ he added.
And locating the records is just the beginning. Each record needs to be reviewed for information that must be redacted, such as Social Security numbers, home addresses, phone numbers and email addresses. In the case of police records, redacting identifying information about minors can be particularly time-consuming. And some records are exempt from disclosure altogether – for example, discussions about real estate transactions or those that would violate an attorney-client privilege.
“Just a couple of complex requests can kind of inundate our office,” he added.
Passey cited as an example a recent request for all the emails for a particular Edmonds City councilmember during a four-year period. “Those all have to be read by the public records specialist here in the office,” he said. “Most likely there are going to be some that may be potentially exempt from disclosure, so those are given to the city attorney’s office, and then if there are exemptions we have to document those in a log. We have to create a response letter, provide the responsive documents and describe the ones that are exempt. We have to tell them what’s redacted or exempt, and why. That’s a huge process.” `
As the public records request workload has grown, municipalities statewide have been asking the Washington State Legislature for relief. The cities of Edmonds, Lynnwood and Mountlake Terrace have included the item as a priority on their respective legislative agendas for the upcoming 2016 session.
“We will continue to advocate for the state Legislature to take a look at the Public Records Act and the burden it puts on municipalities,” Moore said.
According to Patrick Doherty, head of Community Services and Economic Development for the City of Edmonds, legislation on the public records issue was considered during the 2015 legislative session “and will likely be brought forward again.”
House Bill 2156, sponsored by Reps. Chris Reykdal and Steve Tharinger, allowed agencies to assess a cost recovery fee for the actual expense of providing a public record, if the request was primarily for commercial purposes. The bill passed the House, but didn’t make it out of the Senate in the Legislature’s second special session. House Bill 1684, sponsored by Rep. Dean Takko, allowed agencies to charge for the cost to produce electronic records based on megabytes of data. That bill “may also get some discussion” in 2016, Doherty said.
Meanwhile, the Legislature directed the Washington State Auditor’s Office to conduct an analysis of the costs related to producing electronic records. The audit is in process and includes a questionnaire sent out to public records officers statewide, but the full results won’t be published until fall 2016, said Auditor’s Office spokesman Adam Wilson. “It’s always tough to predict when a performance audit will be done, especially one of this size, before we’ve collected the data and evidence we need for the work,” he added.
For public agencies, the audit results and related legislative attention can’t come soon enough. “Cities have been asking for this for years and they [lawmakers] are finally getting serious about what the issues are,” Passey said.
In Lynnwood, Moore said that the city is investigating alternative ways “to increase our citizens’ access to information, which in turn should decrease the amount of requests we receive.”
“We are looking into a robust document management system that would be easily searchable and would allow our citizens access to documents, reports, budgets, and other important information,” she said.
— By Teresa Wippel