Public records requesters must submit “refresher request” for newly available or previously exempted documents

By Tadeu Velloso

On October 10, 2019, our State Supreme Court released Gipson v. Snohomish County, No. 96164-6,  regarding public agencies’ use of exemptions when responding to requests made pursuant to the Public Records Act (PRA). 

Here, Ron Gipson, who was employed at the Snohomish County Denney Juvenile Justice Center, was under investigation for several allegations of sexual harassment and sexual discrimination reported by several female corrections officers.  Gipson was also the longest serving council member on the Everett City Council and up for reelection in 2015.

Gipson submitted a public records request on November 28, 2014 for “all [public] records which in any mentions the name Ron Gipson[.]”  Snohomish County (“County”) received the request on December 1, 2014.  The County disbursed responsive records in five installments.  The County claimed that some documents were withheld due to the PRA exemption for records related to active and ongoing investigations.

Gipson filed a complaint in King County Superior Court seeking disclosure of the redacted records and statutory penalties under the PRA.  The trial court granted summary judgment for the County.  Gipson appealed.  The Court of Appeals affirmed, holding that the exemption applied at the time the request was made and the county was not required to update its responses once the investigation ended.  The Supreme Court affirmed, reasoning that the County properly applied the active and ongoing investigation exemption.

In its decision, the Court adopted the test set forth in Sargent v. Seattle Police Department, 167 Wn. App. 1, 260 P.3d 1006 (2011), aff'd in part and rev'd in part on other grounds, 179 Wn.2d 376, 314 P.3d 1093 (2013) (“Sargent I”).  In Sargent I, the Court of Appeals created a bright-line rule explaining that an agency responding to a records request is “not required to monitor whether newly created or newly nonexempt documents.”  Id. at 12. 

Briefly, Gipson argues that since the investigation was completed on February 2, 2015, all subsequent records produced by the County were no longer subject to the investigation exemption.  But as the Court notes, this would create an unreasonable expectation on agencies. 

 When agencies are forced to produce several installments in response to a voluminous records request, those installments are not treated as stand-alone requests under the PRA. An agency is required to provide only records in existence at the time the request is made. An exempt record, like a nonexistent record, is not available for inspection, and an agency is not obligated to produce it.   The PRA also does not require that an agency inform a requester when an exemption expiries.  As such, when the requester is aware of new records or that a previously-used exemption has expired, the requester must make a “refresher request.” 

The Court also explained that this rule furthers the public policy that underlines the PRA.  Agencies received several requests for public records.  An agency identifies what records are responsive and what exemptions apply at the time the request is received.  This allows for prompt responses to the requester.  Obligating agencies to reevaluate a request would only delay the request response and overburden our agencies.