I just returned from the WPPA Commissioners Conference where we had a discussion about the increase in litigation involving the Washington Public Records Act (chapter 42.56 RCW).  I thought it worthy of a report in this column.

No doubt, there has been an increase in lawsuits against local governments alleging violations of the Washington Public Records Act (the “PRA”)[1].  The litigation deck is stacked against the government for the following reasons:

-    PRA requests are easy to make.

-    The PRA compliance rules can be burdensome.

-    The PRA exemptions to withhold disclosure are narrowly construed.

-    PRA procedural missteps are violations.

-    The PRA provides that any person who prevails in court against a government “shall be awarded all costs, including a reasonable attorney fee.”  If the government wins a PRA case, it does not get awarded its attorney fees and costs.

-    A violation of the PRA carries a fine of up to $100 per day/per record which is assessed up until the final decision.  Even if a government prevails at the trial court level and then again at the court of appeals, only to lose at the Washington supreme court level, the penalty is assessed for that whole period of appeal.

-    PRA claims and judgments are usually not insured.

No doubt, we have seen lawyers start to specialize in PRA lawsuits with some lawyers taking these cases on a contingency fee.  It is for these attorneys “a target rich environment.”  But, there are things your port district can do to greatly minimize the risk of these lawsuits.  Here are some ideas.

Shift your port’s perspective!  The common view I hear about the PRA is that it interferes with the more important work of port districts.  The best way to avoid PRA lawsuits is to shift your port’s perspective to understand that fulfilling PRA requests is what port districts do, no less important than any other activity and really an opportunity for great customer service.  Once a port district approaches PRA requests from the customer service perspective, like any customer service activity, a port district can establish a budget, assign personnel, measure key performance indicators and seek to exceed expectations for all requests.  Often PRA lawsuits arise from a port critic that uses the PRA as a means to harass port staff or port commissioners.  Don’t go for the bait and instead provide great customer service to the port critic.  Think of sitting in a commission meeting and listening to the executive director crow to the commission about how port staff provided great customer service on a complicated and lengthy PRA request.

Know the PRA rules and procedures.  The law requires that governments appoint a PRA officer.  Support this position, listen to what they say and make sure the organization is trained to involve the PRA officer in every request.  Have a policy in place and train on the policy.  Critical is an understanding that any PRA request received by any staff member, or any commissioner must be immediately forwarded to the port’s PRA officer, so that person can respond within five business days as required by law.

Make sure you want to use that exemption.  The PRA provides a list of exemptions that could apply to port documents.  The tendency is to always claim the exemptions.  First, always seek legal review before your port claims an exemption – they are narrowly construed.  Second, decide if the port really wants to claim that exemption for the particular document.  On occasion the exemption claim is not worth the exposure to litigation.

Plan for PRA requests as part of the annual budget process and as part of every significant project.  When a port district has a large project and/or a controversial project, expect PRA requests.  Over the years, I have seen many project plans and flow charts which lay out in detailed design, grant, permitting and construction schedules.  But it is rare to see the PRA plan for the project.  In the old days we would encourage port districts to set up a physical data room with copies of all documents in notebooks on racks.  We expected, and encouraged, the public to come in and look through the records and had a copier available.  Now we encourage port district clients to plan for PRA requests as part of the project planning and create a “virtual” data room to provide great visibility and customer service.

Invest in technology.  Understand that “public records” includes almost any document or electronic record concerning the port district.  This includes text and pictures on cell phones and emails on home computers.  The best practice is to invest in technology to manage emails and text messages.  Provide port district computers for your commissioners.  Instruct commissioners to forward any emails received on their personal email addresses, to their port email address.

Migrate as much information as you can to the port’s web page.  Over time, develop a practice of automatically moving most documents to the port’s web page where they are available for public review.  An appropriate answer to a public records request is to direct the person to the port’s document portal.

If your port gets a PRA lawsuit, get a realistic evaluation quickly.  If your port district is sued under the PRA, get a realistic review early and settle quickly, if warranted.  Understand that most governments lose these lawsuits, and a quick settlement may be the most cost-effective way to go.

As always, please contact your port counsel with any questions regarding this topic.  And, if you have a particular question for Knowing the Waters, please email me at fchmelik@csdlaw.com.

[1] To a lesser degree there are similar claims under the Open Public Meetings Act.