Leveling the Playing Field: Prompt Resolution of Public Records Requests for Agencies through Show-Cause Procedure

Washington’s Public Records Act (“PRA”) mandates the broad disclosure of public records in furtherance of the public policy of government transparency.[1]  Under the PRA, the media and ordinary citizens can request and obtain government records to stay informed about how their government is serving the public’s interest.  Government agencies must respond to these requests by conducting reasonable searches for responsive records, communicating with requestors, and providing the records for inspection and copying unless they are exempt from disclosure by statute.

The PRA allows requestors with the ability to seek judicial review of an agency’s response to their request and to seek an award of penalties if the court finds the agency has violated the PRA.  Government actions in responding to PRA requests can be the subject of civil proceedings.  Civil litigation, of course, can often be time-consuming and expensive.  The PRA gives requesting parties the ability to streamline the process and seek expedited review through a show-cause hearing.   A recent case suggests that not only requestors but responding government agencies may expedite the process through the use of a show-cause hearing.

Washington appellate courts have held that, like litigants requesting records from the government, responding agencies (and third parties with standing to object to disclosure) have the right to use the procedural tools provided under the civil rules governing lawsuits.  Following this precedent, the Division III of the Court of Appeals recently held that government agencies can invoke a show-cause procedure to enable the prompt judicial review of a PRA request, and perhaps to avoid protracted discovery, even though the PRA purports to grant such a right only to requestors.[2]

In Kittitas County v. Allphin, the Washington State Department of Ecology (“DOE”) requested a show-cause hearing under the PRA, to address the requestor’s claim that DOE had violated the PRA by performing an inadequate search and improperly withholding records, among other things.  The requestor objected, pointing out (correctly) that the plain language of RCW 42.56.550(1) and (2) expressly grants requestors the right to invoke the show-cause procedure, not responding agencies.  The requestor instead wanted to obtain further discovery on its claims.

The trial court rejected the requestor’s argument and engaged in judicial review of the requestor’s PRA claim.  The Court of Appeals affirmed.  The court held that an agency can rely on CR 7(b)(1) (the Civil Rule governing motions) to move for judicial review of a requestor’s PRA claim under RCW 42.56.550(3), even though the statute seems to grant only requestors that right.  Whether the requestor or an agency makes a motion for judicial review, the nature of the hearing is the same:   RCW 42.56.550(3) authorizes hearings based solely on affidavits for review of agency actions challenged under the PRA.

In making this ruling, the court acknowledged that the PRA contained a strong legislative mandate for broad disclosure of public records.  But the court also recognized that “the legislature did not intend that disputes over whether an agency has complied with its important obligations under the PRA should drag on indefinitely.”[3]

This ruling appropriately reflects that the PRA is not intended to create extended and burdensome litigation against government agencies but, rather, to allow public access to government records.  Allowing government agencies to seek efficient resolution of PRA claims furthers this purpose while avoiding unnecessarily expended litigation and overly burdensome expense for government agencies—and their taxpayers.

— Brandi Balanda

[1] RCW 42.56.020; Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978).

[2] Kittitas Cty. v. Allphin, 2 Wn. App.2d 782, 789-90, 413 P.3d 22 (2018) (discussing cases).

[3] Id. at 793.