PRA and Discovery

Formal discovery produced by the Office of the Attorney General (AGO) on behalf of a state agency with a privilege log may reference the Public Records Act in Chapter 42.56 of the RCW.  Based on the plain language of the Public Records Act, there can be overlap with documents requested as to how they are treated under the PRA, putting formal discovery aside sought under Cr 26.

Be careful to scrutinize any claimed privileges thereunder, and specifically consider RCW 42.56.210(3) and Sanders:

The trial court's interpretation of the statute is correct: an agency withholding or redacting any record must specify the exemption and give a brief explanation of how the exemption applies to the document. RCW 42.56.210(3). *** The identifying information about a given document does not explain, for example, why it is work product under the PRA's “controversy” exemption.

Sanders v. State, 169 Wash.2d 827, 846, 240 P.3d 120, 130 (2010).

Also, the agency must do more than identify the record and the specific exemption—it must explain how the exemption applies to the record: 

If merely identifying the record and the exemption were sufficient, it “would render the brief-explanation clause superfluous.”

 Block v. City of Gold Bar, 189 Wn. App. 262, 282–83, 355 P.3d 266, 276 (Div. I, 2015), relying on Sanders.

The descriptions are necessary to make threshold determinations about whether the claimed exemptions are valid.  Id.  Thus, you will want to be very particular when considering redactions or records withheld by the AGO in any context but know that even in more informal contexts you may be entitled to demand that the relevant privilege log be updated to include a sufficient brief explanation, if not included.