Armand Resto-Spotts, BridgeTower Media Newswires
In today’s land use and development context, an understanding of public records law is not just a critical component, but often a necessary one. Whether it’s pulling the permit history for a potential acquisition site, reviewing the relevant documents and communications on a particular land use review or permit, or preparing for an appeal, knowing how to efficiently locate and obtain specific records within the boundaries of the state’s public records law can be the difference between a successful project and one that fails or experiences delays.
Many land use practitioners and development professionals have requested documents from a public body. But fewer have actually drafted their requests with specificity, intent and a certain narrowness to actually obtain the records sought. Employing some of the following proactive clarification techniques will provide critical guidance to the agency reviewing a request, and should limit the scope of work and review, and aid in efficient resolution.
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Proactive clarification
One of the first and essential steps any public agency takes when receiving a request is to ascertain which records are being sought. One can imagine that if an email is received with a broad request for “all documents regarding last night’s meeting,” the agency would be without much guidance as to which records, if any, would apply.
The conservative approach is to provide all records tied to last night’s meeting. But that’s impractical and unrealistic from an efficiency and resources standpoint – for both the agency in its research and requester to sort through voluminous records. While there are times when a “request it all” approach is beneficial, records requests generally should be drafted in such a way as to obtain the specific documents sought and cover one’s bases over all other areas or subjects that potentially apply to the inquiry.
Proactive clarification provides this specific, express guidance to the agency and ensures that the whole but limited scope of records sought can be captured as quickly and accurately as possible. In many ways, the records request should be viewed like a search engine. All the information sought is out there, but to find it efficiently, quickly, and with minimal effort or frustration – for both the agency and requester – that initial search should be narrowly tailored to the result.
Take, for example, that aforementioned broad request for “all documents regarding last night’s meeting.” The agency would likely seek clarification from the requester to narrow that request. Knowing this, the records request could have been specifically tailored to address the requester’s inquiry. The requester could indicate staff members that may have applicable records; request documents related to only one specific agenda item; provide a date range for records; or even narrow the term “documents” to “handwritten notes.” The means in which one can narrow his or her request are numerous.
Lay the groundwork for the agency to locate applicable records. Notwithstanding issues with agency workload, when a request is as specific and narrow as possible, then the response will be too.
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Narrowing does not mean limiting
To be clear, narrowing a request does not mean one is excising potentially applicable records. Narrowing a request is simply “trimming” the inquiry so as to provide specific, clear guidance to direct the agency in charge toward potentially applicable records.
A request should never be drafted in a way that leaves the entire search process up to the agency. Not only will workload and resources be cause for concern, but the accuracy and depth of the response will likely vary considerably. The request may take longer, and there may be several levels of clarification needed. Do both yourself and the agency a favor and proactively clarify the scope of the records request. The response will be worth that initial effort.
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Key search terms
Other ways of narrowing a request involve key search terms and express exclusions. Key search terms, like names or subject lines, are highly effective tools in public records requests. Not only does this aid the agency in its work to identify responsive records, but it provides “mile markers,” if you will, for the requesting process. That is especially so if it’s a series of requests with one agency, or the same request with multiple agencies. Being able to cross off key search terms from a to-do list ensures that bases (i.e., the agencies or subject matter) are being covered.
On the other side of that coin is expressly eliminating components of a search. For instance, if one is seeking records pertaining to environmental conditions on a particular property or permit, one may want to expressly exclude types of permits, like fire permits, on file that are not relevant. Identifying and limiting key search terms provide the pathways by which the agency will locate the requested records.
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Format
Any electronic data requested must be provided in the form or file type requested, if it is available in that manner. If not, the agency’s obligation is to provide the data in the form it exists.
To limit delay on a request, a requester should specifically identify the file or format type sought. For example, if a requester is seeking information about financials relating to a road project, one may want to identify that records should be produced in PDF format, if possible, showing the summary invoice or financial fact sheet. If not specifically identified, the agency may elect to produce the financial information in whichever form it believes is applicable. That may mean an Excel sheet with unidentifiable information or categories, and this may not be what the requester was hoping to review (or try to translate).
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Armand Resto-Spotts is a land use, real estate and environmental law attorney at Jordan Ramis PC. Contact him at 360-567-3900 or armand.resto-spotts@jordanramis.com. This column is intended to provide readers with general information and not legal advice. Consult professional counsel for help regarding specific situations.
