Gipson challenges Snohomish County's response to a
records request under the Public Records Act (PRA), chapter
42.56 RCW, which allows agencies to withhold information
relating to "active and ongoing" employment
investigations for "unfair practice ... or of a possible
violation of other federal, state, or local laws prohibiting
discrimination." Former RCW 42.56.250(5) (2014). Gipson
requested records that related to allegations of workplace
sexual harassment against him. At the time of his request,
Gipson was under investigation for those allegations. Due to
the voluminous request, Snohomish County responded by
producing the documents in five installments over the course
of several months and asserted the active and ongoing
investigation exemption under the act for each of those
installments. Gipson argues treating each installment with
the exemption was improper under the PRA. We disagree.
following reasons, we hold that Snohomish County properly
applied the active and ongoing investigation exemption and
2014, Gipson was under investigation for several allegations
of sexual harassment and sexual discrimination reported by a
few female corrections officers from the Snohomish County
Denney Juvenile Justice Center, where he was employed. This
investigation was conducted by an outside investigator,
Marcella Fleming Reed (referred throughout by the parties as
MFR). The investigation continued until February 2, 2015.
was the longest serving council member at the time on the
Everett City Council and was up for reelection in 2015. To
address the allegations and a report on the matter from a
local news outlet, Gipson submitted a public records request
on November 28, 2014, for "all records which in any way
mentions the name Ron Gipson as it relates to this [public
records request]." Clerk's Papers (CP) at 52-56. The
county received the request on December 1, 2014, and assigned
the request tracking number 14-06701. See CP at
47-48. In response to Gipson's voluminous request, the
county issued its response in five installments over the
course of several months.
February 19, 2015, Gipson received the second installment to
his records request. This installment contained a series of
heavily redacted invoices, along with a "Withholding
Log," which explained that an additional 69 pages were
being withheld due to an active, ongoing investigation under
RCW 42.56.250(5). A third installment was provided to Gipson
on March 5, 2015, also notifying that an additional 298 pages
were being withheld under the active and ongoing
April 22, 2015, Gipson was notified of a fourth installment
for his records request. Believing it had provided all
records requested by Gipson, the county closed the request
With regard to PRR 14-06701, the County claimed the
attorney-client exemption and the exemption identified in RCW
42.56.250(5) for active and on-going investigations into
allegations of employment discrimination. At the time your
request was received, November 28, 2014, the employment
discrimination investigation which was the subject of the
request was still active and on-going. These records and the
exemptions cited are not governed by the Court's decision
in Predisik [v. Spokane School District
No. 81, 182 Wn.2d 896, 346 P.3d 737 (2015)] because the
County did not redact or withhold based on either RCW
42.56.230(3) or RCW 42.56.240(1). The County declines to
change or remove the exemptions cited and the records
withheld or redacted in response to PRR 14-06701.
CP at 140. Gipson responded that he had not received all
documents requested, prompting the county to produce a fifth
installment of records on May 4, 2015, that it had
overlooked, and subsequently closed the
April 2016, Gipson filed a complaint in King County Superior
Court seeking disclosure of the redacted records and
statutory penalties under the PRA. The county filed a motion
for summary judgment, arguing the county had a right to rely
on the active and ongoing investigation exemption to each
installment because it applied on the date the request was
received. The trial court granted summary judgment, and
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. See Gipson v. Snohomish County,
No. 76826-3-1 (Wash.Ct.App. July 9, 2018) (unpublished),
Gipson petitioned this court for review, arguing the Court of
Appeals' decision improperly applied the "no
standing request" rule in Sargent v. Seattle Police
Department, 167 Wn.App. 1, 260 P.3d 1006 (2011),
off'd in part and rev'd in part on other
grounds, 179 Wn.2d 376, 314 P.3d 1093
(2013). We granted review.
was enacted to facilitate government transparency through the
disclosure of public records. In furtherance of that goal,
the PRA requires agencies to publish rules and regulations to
promote ease of access for public records requests.
See former RCW 42.56.040 (2014). Because the people
have a right to remain informed of government instruments,
this chapter's provisions are to be "liberally
construed and its exemptions narrowly construed." Former
RCW 42.56.030 (2014). The PRA requires agencies to
"provide for the fullest assistance to inquirers and the
most timely . . . action on requests for information."
Former RCW 42.56.100 (2014). However, in certain
circumstances, information is exempted from public
inspection. See former RCW 42.56.250 (2014). Some of
these exemptions may be time limited.
argues the appellate court here erred by extending the
application of Sargent to this case. A discussion of
the facts in that case is helpful to understand the
applicability of Sargent to this case. In July 2009,
the respondent in Sargent was under investigation
for an altercation with an off-duty police officer. 167
Wn.App. at 7. He submitted a records request in August and
September, which was denied due to an active and ongoing
investigation. Id. The respondent was then asked to
resubmit a records request in six to eight weeks. The
investigation continued through the interim, and the
investigator conducted his last witness interview in October
2009. Around this time, an internal investigation of the
off-duty officer commenced. Later that month, the
investigation was referred to the city attorney for
prosecution. Id. The city declined to file charges
in late 2009 or early 2010, and the respondent was notified
of that decision. Id.
February 2010, the respondent submitted a refresher request.
Id. at 7-8. The police department provided redacted
records, relying on the active and ongoing investigation
exemption in March. Id. at 8. The internal
investigation of the off-duty officer concluded in April
2010, and the respondent did not submit a new request for
records at that time.
respondent filed a complaint in King County Superior Court,
alleging violations under the PRA. The trial court in that
case agreed with the respondent and held that the records
were no longer exempt after the investigation ended and that
the city was required to produce the records for the
respondent that were previously exempted. Id. at
8-9. That decision was appealed.
Sargent I, the Court of Appeals reversed and created
a bright-line rule holding that "[t]he PRA does not
provide for standing records requests. An agency is not
required to monitor whether newly created or newly nonexempt
documents fall within [such] a request to which it has
already responded." Id. at 12. Pointing to the
Washington State Bar Association's Public Records Act
Deskbook, the court noted, "The [PRA] does not
provide for 'continuing' or 'standing'
requests. Instead, the comment suggests 'refresher'
requests." Id. at 11 (footnote omitted)
(quoting Wash. State Bar Ass'n, Public Records Act
Deskbook: Washington's Public Disclosure and Open Public
Meetings Laws § 5.3(3)(d) cmt. at 5-31 (2006)). Because
the investigation was not referred to the city for
prosecution until after the initial records requests were
made, the city could claim the exemption, and the respondent
was required to submit a refresher request after he was
notified the investigation concluded.
argues that Sargent is inapt because, here, the
active and ongoing investigation exemption was no longer
applicable after February 2, 2015, and any installment
produced after that date cannot be limited by that exemption.
In essence, Gipson asks us to treat each installment as a
new, independent request, and the county must determine
whether there are any applicable exemptions at the time the
installment is produced to the requester.
installments are not new stand-alone requests. Rather,
installments fulfill a single request and should be treated
as such. With any request, the receiving agency determines
any applicable exemptions at the time the request is
received. Treating each installment as a new, single request
would effectively permit standing requests because a
requester is not required to submit a records request each
time an installment is prepared. The agency prepares each
installment based on the initial records request it receives.
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. Should the exemption
expire and the record come into "existence" after
the initial request and determination, the onus is on the
requester to make a "refresher request."
otherwise runs counter to the Court of Appeals' rationale
in creating the bright-line rule in Sargent. It
would allow standing requests in cases where records requests
require multiple installments because, with each installment,
Gipson failed to submit a refresher request, relying instead
on his initial request made in November 2014.
reading of the PRA is unworkable. As Snohomish County
correctly argued, this would effectively provide for a
"standing request," which would treat requesters
who are seeking limited information differently from those
who request high volumes of records. Under Sargent, if
it were a single installment request that was fulfilled while
a limited exemption was in effect, the requester would be
required to submit a new request when the exemption expired.
In contrast, under Gipson's proposed rule, the requester
whose voluminous request requires installments would not.
Essentially, this would allow a "standing request"
so long as the request is broad enough to require an agency
several months and multiple installments to fulfill.
See Wash. Supreme Court oral argument, Gipson v.
Snohomish County, No. 96164-6 (Feb. 26, 2019), at 23
min., 0 sec. through 23 min., 20 sec, video recording
by TVW, Washington State's Public Affairs Network,
eam=true. Only those who request large volumes of records
stand to benefit from such a rule.
to Gipson's argument, applying Sargent to
installment requests is not an improper extension of the
"no standing requests" rule. The policy underlying
the "no standing requests" rule is equally
applicable to a voluminous request requiring multiple
installments to fulfill. The Court of Appeals, in
Sargent, rejected standing requests because
"[n]othing in the language or history of the [PRA]
indicates the legislature intended to impose on agencies an
endless monitoring of old requests, or to require updated
responses indefinitely to people who may have long since lost
interest." 167 Wn.App. at 11. Further, agency
regulations provide that "[a]n agency must only provide
access to public records in existence at the time of the
request. An agency is not obligated to supplement
responses." WAC 44-14-04004(4)(a).
that the Public Records Act Deskbook already has
some guidance on this issue. It states that "[a]n agency
has no duty to create a record in response to a request; only
records existing at the time of the request must be
provided." Wash. State Bar Ass'n, Public Records Act
Deskbook: Washington's Public Disclosure and Open Public
Meetings Laws § 5.1(4), at 5-8 (2d ed. 2014). Thus, it
notes that "standing requests" act as a request for
documents that may become available in the future. See
id. Similarly, the determination of an exemption at the
time the request was made is treated like a record that does
not exist. Therefore, once "a temporal exemption expires
after the request is made, the agency is not required to
produce the record." Id.
than requiring our state agencies to continuously monitor for
any changes to the status of a claimed exemption,
Sargent's bright-line rule is reasonable, and we
adopt it. Thus, we hold that a records request is satisfied
when an agency receives a public records request, identifies
a legitimate exemption under the PRA at that time,
and clearly notifies the requester that the request will be
treated in accordance with that exemption. This puts the
requester on notice as to the nature of the exemption, and
they can submit a "refresher request" after
receiving an installment controlled by the claimed exemption,
or when the exemption has expired, if the requester still
wants those records.
this bright-line rule also furthers public policy. As
Snohomish County correctly notes, assessing a request on the
date it is received "insures the people's prompt,
efficient access to public records." Suppl. Br. of
Resp't at 10. Many agencies have large volumes of public
records requests. When receiving a request, the agency must
identify responsive documents and any applicable exemptions,
and estimate the time for response. Requiring the agency to
continuously reevaluate a request to determine whether their
original assessment regarding exemptions is still correct
will only delay the production of the records request. By
treating a request that must be fulfilled in installments as
tantamount to a new request, if an agency realizes that a
claimed exemption it relied on has expired, it will have to
reproduce all of the information it previously released to
comply with the public records request. Such an outcome will
prove unwieldy and overburden many agencies that already deal
with an enormous volume of records requests.
County argues that requiring a requester to submit refresher
requests would provide greater transparency between the
agency and the requester, and while the county acknowledges
doing so puts a greater burden on the agency to process more
requests, "this is the preference" as
"transparency is the goal [under the PRA]." Wash.
Supreme Court oral argument, supra, at 23 min., 41
sec. through 24 min., 11 sec, and 24 min., 17 sec. through 25
min., 02 sec. We agree with the county's reasoning.
Applying Sargent to voluminous requests will prevent
agencies from allocating personnel to the task of
continuously monitoring the status of a single expansive
request while installments are pending. See id. at
30 min., 16 sec. through 30 min., 39 sec. This is the very
thing that Sargent was trying to prevent.
requester is made aware of a temporal exemption applied to
their records request, the deskbook recommends that the
requester submit a separate "refresher request."
PUBLIC RECORDS ACT DESKBOOK § 5.3(24), at 5-19 (2014).
It also recommends that the "refresher request"
should seek all records indicated in the initial request
"from the date of the first request to the date of the
refresher request." Id. Gipson's invitation
to create a new rule antithetical to underlying policies of
records requests is not well taken.
County determined that an exemption existed at the time
Gipson made his request. The county relayed this to Gipson
via e-mail correspondence. See CP at 139-40. While
Gipson argues he was dissuaded from submitting
"refresher" requests, in part because he was
provided "factually misleading information . . . that
the investigation remained open and as a result the status of
the requested records unchanged," that is immaterial.
Suppl. Br. of Pet'r at 11-12. Admittedly, Snohomish
County's e-mail may not have been a model of clarity. It
"claimed the attorney-client exemption ... for active
and on-going investigations into allegations of employment
discrimination." CP at 140. ...