The Attorney General’s Office (AGO) has set a January 8, 2025 deadline for informal written comments on the Model Public Records Act Rules amendments that were proposed by the Seattle Times and other news organizations in October. The AGO has decided to engage in a “collaborative rulemaking effort” where they take informal comments from stakeholders on the language proposed by the news organizations before finalizing the agency’s own official CR-102 draft rules proposal.

The AGO’s eventual CR-102 draft rules will be the draft that goes through the formal rulemaking process. The CR-102 does not have to match the news organizations’ proposed amendments.

Shaping an agency’s initial CR-102 draft rules can be a critical step for stakeholders in the rulemaking process. Once an agency has decided on a policy direction with a draft rule proposal, it is often harder for stakeholders to make significant changes later in the rulemaking process. Cities have a much better chance of influencing the final rules if they engage early on and help shape the agency’s initial draft rules from the beginning.

AWC plans to participate in the informal rulemaking process, and we encourage cities to do the same to ensure that the AGO’s draft rules reflect the needs of local governments. Cities can send their written comments on the proposal to agorulemaking@atg.wa.gov.

AGO considering amendments to Model Public Records Act Rules

November 15, 2024

The Attorney General’s Office (AGO) announced in October that it was beginning the rulemaking process to amend the Model Public Records Act Rules, in response to a petition for rulemaking from the Seattle Times and 17 other news organizations.

The Model Public Records Act Rules are non-binding best practices for “agencies” under the Public Records Act (PRA), which includes cities. While non-binding, the Model Rules are influential and help inform state agencies’ and local governments’ own PRA procedures. Cities will be able to comment on the rulemaking as the process progresses. Since the rulemaking process has just started, a hearing date has not yet been set. The rules were last updated in 2017. Cities and other stakeholders will be invited to provide suggestions on other updates to the model rules.

The proposal from the news organizations focuses on the sections of the Model Rules dealing with the purpose of the rules, the availability of public records, and processing public records requests. Specifically, the proposal would:

• Require public agencies to “promptly” handle records requests and take steps to triage requests: namely prioritizing and processing simple requests over large complex ones regardless of which request came in first.
• Require agencies to consider how time-sensitive the request is for a requester when evaluating requests.
• Emphasize that agencies and elected officials have a duty to preserve records, and discourage keeping public records on personal devices or accounts.
• Discourage the use of third-party notice process that allow third parties impacted by records disclosures to request an injunction, and favor simply applying existing exemptions and forgoing notification of third parties.
• Replace the current 30-day deadline to inspect completed records requests with an “agreed on period” for requesters to claim or review records.
• Require agencies to ensure requestors have actual notice that their records are ready and a request may be closed with inaction.
• Requires agencies to “diligently” process installments of large records requests to make it clear that the installment process is meant to speed up the release of records, not delay it.

In its explanation of the proposal, the Seattle Times argues that the rule changes are needed to ensure that records requests are handled “promptly” and allow state and local governments to more efficiently handle requests. They go on to say that their perception is that public agencies sometimes use the public records process to delay handling records requests, or simply that the processes adopted by agencies should emphasize the quick and efficient processing of as many requests as possible in the shortest time and not allow backlogs to grow.

Cities work hard to ensure transparency with the public and compliance with the PRA, but it isn’t always easy. In recent years, workforce shortages have meant fewer staffers available to process large numbers of requests. In addition, total requests to cities have trended upward. This includes cities processing a growing number of records requests that are eventually abandoned by requesters, which nearly doubled between 2018 and 2022.