Overview of Open Government in Washington State:

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1 City of DuPont 1700 Civic Drive DuPont, WA Council Workshop Tuesday, January 16, :00 PM AGENDA Page 1. CALL TO ORDER 2. COUNCIL TRAINING 2.1. Open Public Meetings Act PRESENTED-OPMAtraining 2.2. Public Disclosure PRESENTED-all staff PRA-Retenton ADJOURNMENT Page 1 of 28

2 Open Public Meetings Act Page 2 of 28 Overview of Open Government in Washington State: Open Public Meetings AGENDA ITEM #

3 Open Public Meetings Act Page 3 of 28 Open Public Meetings Act RCW Open Public Meetings Act (OPMA) AGENDA ITEM #

4 Open Public Meetings Act Page 4 of 28 Intent The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. AGENDA ITEM #

5 Open Public Meetings Act Page 5 of 28 History OPMA passed in RCW Minutes requirement in another law - RCW Applies to all multimember public agency boards and commission governing bodies, and their committees. Does not apply to courts. Does not apply to Legislature. Requires meetings of governing body to be open gavel-to-gavel, unless there is an exception authorized by law. AGENDA ITEM #

6 Open Public Meetings Act Page 6 of 28 Touchstone: Meetings of agencies subject to the OPMA are presumed open. OPMA is to be liberally construed. Meetings or parts of meetings can be closed only by law (e.g. executive sessions; severe disruption). AGENDA ITEM #

7 Open Public Meetings Act Page 7 of 28 Scope OPMA applies to multi-member, public, state and local agencies: Any state board, commission, committee, department, educational institution, or other state agency which is created by or pursuant to statute, other than courts and the legislature. Any county, city, school district, special purpose district, or other municipal corporation or political subdivision of Washington. Any sub-agency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies. Any policy group whose membership includes representatives of publicly owned utilities formed by or pursuant to the laws of this state when meeting together as or on behalf of participants who have contracted for the output of generating plants being planned or built by an operating agency. AGENDA ITEM #

8 Open Public Meetings Act Page 8 of 28 Closing Meetings Closing a meeting or part of a meeting subject to OPMA must be authorized by law e.g., for listed purposes in OPMA. Agency must provide reason where required, e.g., announce reason for going into executive session. 7 AGENDA ITEM #

9 Open Public Meetings Act Page 9 of 28 Enforcement & Penalties OPMA enforced by courts, for claims listed in OPMA. RCW ,.130. Court can impose a $500 civil penalty against each member; $1000 for repeat violation. Court will award costs and attorney fees to a successful party seeking the remedy. Action taken at an improperly closed meeting can be declared null and void. AGENDA ITEM #

10 Open Public Meetings Act Page 10 of 28 Risk Management Tips Agencies subject to OPMA should: Establish a culture of compliance with the OPMA, beginning with agency leadership and support. Review their OPMA procedures. Review available resources; institute best practices. Consult with City Clerk or Attorney. AGENDA ITEM #

11 Open Public Meetings Act Page 11 of 28 AGENDA ITEM #

12 Public Disclosure Page 12 of 28 Preservation and Destruction of Public Records RCW Open Public Records Act RCW 42.56

13 Public Disclosure Page 13 of 28 Purpose of the Open Public Records Act (PRA) Establishes a broad right for citizens to review public records The people, in delegating authority, do not give public servants the right to decide what is good for the people to know and what is not good for them to know. RCW Establishes narrow exemptions for records that may be withheld or redacted Applies to: State government, State agencies; and Local government agencies (municipalities like DuPont). 2

14 Public Disclosure Page 14 of 28 Public Record for Disclosure and Retention Purposes Public record means: any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. This includes records of agency business when they are created or retained by agency employees or officials on personal electronic devices or in non-agency accounts. 3

15 Public Disclosure Page 15 of 28 Writing Writing includes handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated. Remember: a public record is broadly defined. 4

16 Public Disclosure Page 16 of 28 What Records Need to Be Retained? Public records document the conduct of government business Assume most day-to-day records are needed as proof of the City s transactions and decisions: Would an employee, official or commission member have need of this to perform their job? Could the information have significant value in the future? In the event of legal action or dispute, what would you need in order to provide sufficient evidence of actions and decisions that were made? If in doubt, retain, and consult the City Clerk or the City Attorney 5

17 Public Disclosure Page 17 of 28 Examples of Records That Do Not Have To Be Retained cookies in break room ; potluck invite ; other social communications or documents Newsletters Spam, advertising, personal messages Transitory messages (documents that may deal with City business but are temporary in nature). Non-business and social communications Redundant records. Drafts Good faith effort! 6

18 Public Disclosure Page 18 of 28 Transitory Records These records may deal City business but are temporary in nature and not needed for any City purpose and have no retention value. Transitory records do not set policy, guidelines or procedures of general applicability, and are not legal advice or evidence of a transaction or a receipt. While transitory documents communicate information, they are not essential to meeting statutory obligations or documenting City functions. The source of the document is not relevant; only the content determines if it is transitory. Examples include: strings establishing a schedule or place and time of a meeting; records relating to non-city business, such as records of a litigation the City did not participate in; outlook meeting requests and acceptances; drafts of memos, or business documents after the final document has been created. 7

19 Public Disclosure Page 19 of 28 Records Retention and the PRA Not all records need to be retained and almost all records can be destroyed after their retention value has run. The most common retention value is six years if you discover records more than six years old, report them to the City Clerk for evaluation. Records that need not be retained, or could be destroyed under the retention schedule, must be disclosed in a PRA request if it is in the City s possession at the time of the request and is responsive to the request. Once a record is created by a City employee, officer, or official, it is automatically subject to retention and disclosure laws. Accordingly, be mindful and try to only create necessary records. 8

20 Public Disclosure Page 20 of 28 Records Retention and the PRA Cont. The purpose of the PRA is to create transparency between the public and government. The public has a right to know how the City conducts business and to review the records that are the evidence of that business. The cost of retaining records, responding to PRA requests, and paying fines for failing to properly respond to PRA requests ultimately trickles down to the taxpayers. Creating unnecessary records, keeping records that do not need to be retained, and poor records management, increases the likelihood of improper PRA disclosures, wastes City employees time, increases costs on the taxpayer, and in some instances can actually hinder transparency. 9

21 Public Disclosure Page 21 of 28 Records Disclosure: Basic Principles Public records of government agencies are presumed open and subject to disclosure to the public or any other requestor. If a record, or part of a record, is withheld from the public, the City must cite to an exemption in law and give a brief explanation. Exemptions are narrowly construed. The general rule is the City withholds only the exempt information, and releases the rest. Common exemptions: personal information (e.g. SSN, address); personnel files; records essential to an ongoing criminal investigation; medical records. You do not need to make a decision as to whether an exemption applies, but if you think it does, flag the record and let your supervisor or the appropriate staff member know. 10

22 Public Disclosure Page 22 of 28 Records Requests Requests are typically made through the City s Request of Disclosure of Public Records form available via the internet or the front desk at City Hall. If you receive a records request, or any written communication that appears to be a records request, immediately forward it to the City Clerk and the City Attorney. Time is of the essence. The City only has 5 days to provide some type of response to a requestor. If you speak with a member of the public (in person or on the phone) that seeks to make a records request, provide them with a form or a web-link to the form. We cannot force someone to fill out the form: If a person makes an oral records request, and refuses to fill out a form, then (at a minimum) document the request and make sure you get the documents being requested, name of the requestor and how to contact the requestor. Inform them that the City Clerk will contact the and may have followup questions. 11

23 Public Disclosure Page 23 of 28 Disclosure Process When the City Clerk receives a request for records, he or she will respond by: Determining how long it will take to discover if there are responsive records and, if yes, how long it will take to consolidate and produce them. Send requests to employees and/or department directors to search for responsive documents. Review all produced records for: 1) responsiveness; and 2) relevant exemptions. Work with the requestor to deliver any existing records in a timely manner and in a format that works for the requestor. Close the request upon disclosure or all responsive records. Do not attempt to fulfill records requests yourself, do not attempt to negotiate the disclosure of records yourself. 12

24 Public Disclosure Page 24 of 28 Role of the City Clerk The City Clerk is responsible for responding directly to requestors in a timely manner, and providing all responsive records with any lawful exemptions. Other than , the City Clerk is not responsible for searching for records in the possession of each department, agency, or individual. Do not request the Clerk conduct the search for you or ask the Clerk where you would find requested records. You must maintain your own records and be prepared to search for them Agency members should work with their Staff Liaison if they need help searching for records; Council members should contact the City Administrator. It is appropriate to ask for clarification as to what types of records may be responsive and what formats they may exist in or were specifically asked for. Searching for records can sometimes feel frustrating, but remember: the City Clerk is not the one making the request, a member of the public is and you have a legal obligation to provide the fullest assistance in fulfilling the request. 13

25 Public Disclosure Page 25 of 28 Searches All of you should expect to be requested to make a search for records at some point in your City employment. The City must conduct an adequate search for responsive records. Consider all formats (paper, electronic, etc.) Consider records of current staff/officials, and former staff/officials, if potentially responsive. Consider possible locations (e.g., file cabinets, agency website, audio files, etc.) The search should be reasonably calculated to uncover responsive records. Document search efforts (locations, search terms used, etc.) An record of your search to your supervisor or the City Clerk search is usually sufficient. 14

26 Public Disclosure Page 26 of 28 Search of Personal Devices Any data stored on a Personal Electronic Device (PED) that meets the definition of a public record is subject to both the retention and disclosure laws. PEDs typically include personal smart phones, laptops, pads, and accounts. Public Records are the property of the City. Simply because they are stored on your PEDs, does not alter this. Depending on the nature of the public disclosure request, the City may request that you search your PEDs for any responsive records. Neither the City nor the Requestor may access or search any PEDs. If requested, you will conduct the search and then sign an affidavit explaining what responsive records, if any, you discovered. 15

27 Enforcement & Penalties Public Disclosure Page 27 of 28 A court can impose civil penalties. No proof of damages required. Plus, a court will award the requester s attorneys fees and costs. There can be criminal liability for willful destruction or alteration of a public record. For state employees, penalties can be assessed under the State Ethics Law if an employee intentionally conceals a record that must be disclosed under the PRA, unless decision to withhold was in good faith. 16

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