The URL can be used to link to this page

Home My WebLink AboutFIN 2022-10-10 Item 1A - Update - Public Records RequestsUPDATE ON PUBLIC RECORDS REQUESTS Presented by the City Clerk's Office October 10, 2022 Finance & Governance Committee THE PUBLIC RECORDS ACT (RCW 42.56) PROGRAM OVERVIEW LEGISLATIVE MANDATES METRICS AGENCY IMPACTS SANCTIONS SUMMARY THE PUBLIC RECORDS ACT (RCW 42.56) Agencies are required to make identifiable, non- exempt public records available for inspection and copying upon request and to publish rules of procedure that inform the public how access to public records will be accomplished. Records are defined broadly as any writing created or received by an agency in connection with the transaction of business and may be physical or electronic. PROGRAM OVERVIEW The City Clerk's Office coordinates complex, multi -departmental requests, often in concurrence with pending litigation against the City. The City Clerk is the Public Records Officer and oversees compliance. Program components include: • Intake, distribution and monitoring of requests • Interpretation of requests and generation of search parameters • Review for responsiveness and potential exemptions to disclosure • Communications to requestors, agencies, and staff • Data collection and reporting • Retention and destruction of public records LEGISLATIVE MANDATES 5 -Day Letter Rule 01 Within five business days, the City must provide one of the following responses: 1. Make the record available for inspection or copying; or 2. Provide an internet address and link on the agency's website to the specific records requested; or 3. Acknowledge that the request has been received and provide a reasonable estimate when records will be available; or 4. Request clarification and to the greatest extent possible, provide an estimate of the time to respond if the request is not clarified; or 5. Deny the request and provide a statutory reason as to why the request is being denied. 0) LEGISLATIVE MANDATES Annual Reporting As of 2017, the City is required by RCW 40.14.026 to report annually as a single agency to the State Legislature's Joint Legislative Audit and Review Committee (JLARC) on performance metrics related to public records retention, management, and disclosure. JLARC requires agencies to capture 17 standardized metrics with 51 associated subsets of data each calendar year for reporting by July 1St of the following year. The Clerk's Office compiles and standardizes data for submission to JLARC from all City departments with the exception of the Municipal Court, which is not subject to the Washington State Public Records Act but is instead regulated under Washington Court Rules. LEGISLATIVE MANDATES Open Government Training Act The Open Government Training Act went into effect July 2014. Since then, the Clerk's Office has produced and presented training to the City Council every four years on: • Records management • Public Records • The Open Public Meetings Act Other trainings provided by the Clerk's Office includes: • New employee orientations on public records responsibilities • Resources and direction to public records liaisons in other City departments 00 METRICS 180 160 Number of Requests 140 Received Annually (Clerk's Office) 120 100 80 60 40 20 0 90 93 147 131 131 155 130 118 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 METRICS Requestors by Type (Clerk's Office) 131 5 27 42 2017 ■ Individuals ■ Law Firms ■ Organizations ■ Other 112 2018 155 94 15 40 2019 118 15 63 15 25 2020 130 2021 Percentage of requests fulfilled in 6-29 days Average number of days to close Percentage of requests closed in 30 days or more 2017 2018 2019 2020 2021 Percentage of requests closed in 5 days O METRICS Time to Close Requests Annually (Clerk's Office) Longest time taken to close a request 77% 68% 73% 50% 56% 17% 18% 17% 19% 18% 6% 14% 10% 31% 26% 11 18 16 23 19 155 days 211 days 464 days 132 days 182 days METRICS Staff Time on Public Records Requests Annually (Clerk's Office) 1800 1600 1400 1200 1000 800 600 400 200 0 -200 Total Staff Time Annually (Clerk's Office) 50 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 264 549 58T •l 571 1689 1463 982 1139 Average estimated staff time (hours) per request 2017 2018 2019 2020 2021 4 15 METRICS 2021 Costs Associated with fulfilling Public Records Requests (Staff and legal) DEPARTMENT Sum of HOURS Sum of LABOR Sum of BENEFITS FIRE MARSHAL 6.75 688.03 96.47 CITY CLERK 1,139.00 58,131.93 19,399.45 MAYORS 39.50 1,905.11 783.05 POLICE RECORDS 2,117.90 74,126.50 - FIRE 117.12 2,870.61 FINANCE 9.50 429.30 293.91 DCD 448.75 14,341.89 2,916.73 COURT 124.00 3,717.53 1,339.47 TIS 10.50 523.02 273.54 PW — STREETS 36.00 1,800.76 959.55 PW 105.00 5,153.33 1,571.95 4154.02 $ 163,688.01 $ 27,634.12 STAFF COSTS $ 191,322.13 DEPARTMENT HOURS EXPENSES FEES CITY ATTY 170.9 $ 42,216.00 LEGAL COSTS $ 42,216.00 TOTAL AGENCY COST $ 233,538.13 AGENCY IMPACTS For requests requiring an email and electronic data search, the number of results can be astounding. Here are some things that staff need to check for: • Responsiveness • Attorney/Client Privilege • Email Attachments • Tabs in Excel Files • Files with Hyperlinks Fun fact: The search results for one request resulted in 44,219 records, which had 37,287 attachments, thereby totaling 81,506 records to be reviewed. Estimated Total Files and Emails Reviewed Annually 2017 2018 2019 2020 2021 12,214 131,508 40,638 11,688 19,444 AGENCY IMPACTS (continued) Interpreting a request is the first step, and criteria must be established to obtain the most relevant results: Criteria use all searches: 1/1/2017 thru 4/1/2022 for KJSHAREPOINT/0365.EfC Keywords: "Stormwater Management Plan" OR "SWMP" 0R "NPDES" from 1/1/2017 thru 4/1/2022 Results are as follows: PD Data- 0 items City Data- 6059 items 365-10,946 Email- 24079 items Staff then review for responsiveness: v White PRF( Intradyn A,tto rn eyCl ientW h ite Nonresponsive White ResponsiveWhite Search Folders Items: 1.515 Records identified as containing sensitive information must then be redacted and accompanied by an exemption log: anw n Tutp n «, xmrrn, era6Seutharrtr e00I4ra W m" 10.114514 11:41433 -VM Minmila 0f6w) a26 alenta lemmas Office) BamaLDaparru aialia Aaav Ma Ote atasmonvesta ass ammMityalMaas Fm ail Drain Sem TTa,•ay. October 39. 2018 1.32 PM Tai !Wail Turpin Ca Bruce Linton Subiew Rachel. There is also an increased need for: • Nissen affidavits (for records potentially created or stored on staff cell phones) • Third -Party Notices (providing affected parties opportunities to obtain an order enjoining release of records) SANCTIONS Aggravating Factors Any aggravating factors (delayed response, lack of training, bad faith, dishonesty) or civil penalties are awarded to the requestor. Following are other factors for which sanctions were awarded: • Request misdirected or not recognized as a formal request for public records. • Records not found due to inadequate search • Born -digital records were not provided in an electronic format or metadata was not provided. • A request was construed narrowly, resulting in the silent withholding of records. • Not responding to part or all of the request in a timely manner • Unreasonable estimate of time for when records will be available • Willful destruction or alteration of a public record SANCTIONS University of Washington vs. The Seattle Times The UW agreed to pay $97,000 to settle a lawsuit filed by the Seattle Times alleging failure to provide public records that were inadvertently withheld. Public Records Act Labor & Industries vs. The Seattle Times Penalties L&I was fined $503,000 for improperly delaying release of more than 5,400 pages of records. Port of Quincy v. Dove The Port paid $350,000 in a settlement to Mr. Dove as a result of missing one email that landed in the spam folder in its response. Nissen v. Pierce County Work-related text message on a public employee's personal cell phone were found to be subject to disclosure by the WA State Supreme Court. Pierce County paid $950,000 to Ms. Nissen for failing to disclose an employee's text messages. SUMMARY Many local governments struggle to balance their obligations under the Public Records Act with their existing staff and financial resources. In 2013, the City of Kirkland engaged in an 18 -month process to examine this issue and reported: Responding to public records requests is one of the City's unique and core essential functions and is also the responsibility of every City employee. In recent years, both the complexity and volume of records requested has grown, straining the capability of the City's resources. In addition to the constant influx of new technologies that result in new records to manage, State laws evolve, creating new exemptions and obligations to provide notice, new training requirements, and new fee structures. The City's ability to fulfill public records requests thoroughly and in a reasonable time frame is reliant on a systemic and compliant records governance program. Part of that success is due to the development of the Digital Records Center (DRC), which contains 2,074,499 digitized high -retrieval records as of July 2022. Through the DRC, staff can provide hundreds of responsive records through one search. The Clerk's Office also oversees the Citywide Records Management Program involving retaining, destroying and transferring records to the State Archives. Complying with records management laws mitigates legal and financial risk to the City and ensures the City only retains the records needed for operations. The Clerk's Office has not had a failure or sanction. Questions?