PUBLIC RECORDS ACT PROVIDES CONTRACTORS WITH A POWERFUL TOOL AGAINST PUBLIC OWNERS

Date: July 28th, 2010

After problems arise on a public project, contractors are faced with the question of how to substantiate their requests for additional time and money. While weighing the options, contractors have their own documents available for review, but NOT the owner’s or designer’s project documents. Obviously, these files could provide valuable insight into the project’s design and construction and why the contractor encountered problems in the first place. This lack of information can severely impact the contractor’s ability, for example, to write persuasive letters to the owner regarding a change order or prepare for contractually required forms of alternative dispute resolution.

A powerful tool, however, is available to the contractor. Washington’s Public Records Act (PRA), RCW Chapter 42.56, gives the contractor the ability to access the owner’s files prior to litigation by mandating broad disclosure of “public records” — but only if the contractor requests the records. If a contractor does not use this tool, the owner does not otherwise have an obligation to simply turn the documents over. The PRA allows the contractor to easily and inexpensively regain equal footing with the owner regarding factual issues related to the project, and ultimately puts the contractor in a better position moving forward.

The power of the PRA comes from the fact that the PRA requires disclosure of requested “public records,” and broadly defines a “public record.” Under the statute, a public record includes “any writing containing information relating to the conduct of government or the performance of any governmental proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” The PRA’s definition of a “writing” casts an even broader net over the documents available to the contractor, and includes not only what is usually considered to be a document, such as contracts and reports, but also maps, photos, videos, and, perhaps most notably, emails. Washington courts have even gone so far as to define metadata — the data contained within emails and other electronically stored information — as falling within the definition of a public record.

The PRA allows the contractor to request information from the owner that is related to the project, and the public owner must make the records available, subject to certain statutory exceptions. The power of the PRA cannot be underestimated. A contractor’s ability to access key emails (for example, describing the owner’s assessment of the project and its design) can force an owner to sign a change order that would otherwise be denied because the owner is under no obligation to disclose these documents. The owner’s internal emails can also contain critical evidence for substantiation of a claim for breach of the implied warranties of design, good faith, fair dealing, and to not hinder or delay. The same is true for differing site condition claims. These emails are often the only way to demonstrate exactly what the owner knew — and failed to tell the contractor — throughout the course of the project.

Every state and local agency is statutorily required to appoint a public records officer and to make that officer’s name and contact information publicly available. This officer is the point of contact for the public regarding requests for disclosure of public records. Any necessary or suggested formats for PRA requests can generally be found on the particular state or local agency’s website, and usually require filling out a form or writing a letter listing the documents requested. The general rule is that the more specific the contractor can be regarding the documents requested, the more likely it is the contractor will get the documents that he or she is actually looking for, and in a shorter time frame.

The PRA can be used not only to access documents in the public owner’s possession, but also documents in the possession of other state or local agencies associated with the project. For example, the contractor can request information related to the project from agencies involved in permitting, approval, testing, and other assessments of the project. While the PRA is only available to access documents directly from public owners, information regarding a private project in the possession of other state and local agencies tangentially or directly involved in the project can still be requested, and may provide equally valuable information

Most states, like Washington, have legislation mandating public access to governmental records, and as a result, have a process similar to Washington’s PRA to facilitate public access to these records. It is critical that contractors take advantage of this powerful, inexpensive, and yet often overlooked tool. Having key documents related to the project can put the contractor on equal footing with the owner, force a signed change order that might otherwise be denied, and potentially save the contractor the expense of alternative dispute resolution and eventual litigation. Simply stated, put the PRA to work for you to assist you in getting the money and time you deserve.