Nov 19

Jeremy Culumber

Bad faith under the Public Records Act can be proven merely by showing an agency failed to conduct a "reasonable" search for records.

by Jeremy Culumber

In 2011, the Washington state legislature amended the Public Records Act, prohibiting prisoners from receiving penalties under the Act unless they could prove the governmental agency acted in bad faith when responding to their request for records.  In a newly-published decision, Francis v. Washington Department Of Corrections, published on November 19, 2013, Division II of the Washington Court of Appeals addressed the meaning of “bad faith.”   In Francis, the prisoner requested documents related to a prison policy restricting possession of fans and hot pots.  The DOC produced a general policy, and stated that the request was considered closed.  Later, a fellow prisoner revealed other documents he had received in response to a similar request; documents DOC had not produced to Mr. Francis, so Mr. Francis sued the DOC for violations of the Act.

The DOC admitted it violated the Act by failing to produce the documents at issue, but argued that “bad faith” only applies “where the government agency knew it had responsive documents that should have been disclosed, but purposely failed to disclose them.”  The Court rejected that argument, concluding that bad faith can be proven merely by showing the agency failed to conduct a “reasonable” search for the requested documents.  It based its holding largely on the fact that DOC records indicated staff spent approximately 15 minutes searching for the requested documents.  In the end, the Court held that an agency will be liable “it if fails to carry out a record search consistently with its proper policies and within the broad canopy of reasonableness.”

This decision should serve as a strong reminder of the importance of planning ahead and developing a clear understanding of the Act’s requirements.  Our courts continue to make it clear that the secret to avoiding large awards under the Public Records Act is the implementation of, and compliance with, proper policies and procedures for responding to requests under the Act.

The full opinion can be found at

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