THE PUBLIC RECORDS ACT REMAINS A POWERFUL TOOL ON PUBLIC PROJECTS

Date: April 12th, 2016

Recently the Washington Supreme Court agreed with a trial court’s assessment of more than $500,000 in penalties against the Department of Labor and Industries for its violation of the Public Records Act (PRA). The case, Wade’s Eastside Gun Shop, Inc. v. Department of Labor and Industries, illustrates the PRA’s broad application, and serves as a reminder that the PRA is a powerful tool for contractors seeking information from public owners.

The PRA helps to keep public agencies accountable and the spending of tax dollars transparent. The Act requires public agencies turn over “public records” to any person upon request for inspection and/or copying. The statute defines “public record” broadly and includes, among other things, all writings, reports, maps, photos, videos, emails and metadata that relate to government conduct. The PRA’s broad scope and few exceptions make it an important tool for anyone seeking information about public agencies’ actions.

In the Wade’s case, L&I received a complaint of elevated levels of lead in the blood of two employees working on a remodel of Wade’s Eastside Gun Shop in Bellevue, Washington. L&I opened investigations into the companies that employed the workers. Approximately three months later, the Seattle Times requested access to all L&I records on lead exposure at Wade’s. But after six months of back and forth communications with L&I, the Times had not received its requested records and filed a lawsuit to get them.

At trial, L&I argued that all of its records fell within an exemption from disclosure for documents relating to open and active police investigations. The Wade’s court disagreed, ruling that unlike open criminal investigations where the early release of information might “impede the apprehension of an as-yet unknown suspect,” employers know when they are being investigated. Thus, L&I’s investigations, unlike criminal investigations, are unlikely to be impacted by its release of records.

Because of this difference, the court ruled that L&I’s documents were not exempt from production under the PRA. Instead, L&I failed to prove that withholding the records was “essential to effective law enforcement.” The Wade’s court reaffirmed the law’s broad application and narrow construction of PRA exemptions.

The Wade’s court also ruled that the trial court properly imposed a penalty for each page (instead of each record) L&I wrongfully withheld from the Times. The court considered a number of factors in its decision. First, the court stated that the PRA defines “public record” as any “writing,” so a “single page fits within the plain language of the broad definition.” The PRA also provides that the penalty determination “shall be within the discretion of the court.” Lastly, the court discussed how modern technology (such as text messages and metadata) makes it impossible to create a bright-line rule on how to calculate PRA penalties. Instead, trial courts need flexibility to “respond appropriately in this age of rapidly advancing technology.” Accordingly, the court’s decision strengthened the trial court’s already extremely broad discretion as to the amount and method of calculating PRA penalties.

The PRA is a powerful tool for contractors working on public projects. If problems arise contractors can use the PRA to access the owner’s documents to substantiate their claims for additional compensation and time. Ashbaugh Beal previously published an article that discusses how contractors can use the PRA to their advantage. You can read that article here.

If you have any questions about the Wade’s decision or any other construction law matter, please contact Jocelyn Whiteley at jwhiteley@ashbaughbeal.com.