By Armand Resto-Spotts, AttorneyThis article originally appeared in the October 25, 2019 edition of the Daily Journal of Commerce Oregon.
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 a failed or delayed one.
Many land use practitioners and development professionals have actually requested documents from a public body. But not as many have actually drafted their requests with specificity, intent, and a certain narrowness as to actually get 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 the efficient resolution of records requests.
One of the first and essential steps any public agency takes when receiving a request is to ascertain what records are actually 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 what records, if any, would actually be responsive to this individual.
The conservative approach is to provide all records that actually regard last night’s meeting. But that’s impractical and unrealistic from an efficiency and resources standpoint—for both the agency in its research and requestor to sort through voluminous records. While there are times where a “request it all” approach is beneficial, generally records requests should be drafted in such a way as to get the specific documents you seek and cover your bases over all other areas or subjects that are potentially responsive to your inquiry.
Proactive clarification provides this specific, express guidance to the agency and ensures that you are capturing the whole but limited scope of records sought as quickly and accurately as possible. In many ways, the records request should be viewed like a search engine. All the information you seek is out there, but to find it efficiently, quickly, and with minimal effort or frustration—for both the agency and requestor—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 requestor to narrow that request. Knowing this, the records request could have been specifically tailored to address the requestor’s inquiry. The requestor could indicate staff members that may have responsive 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 their request are numerous.
Lay the groundwork for the agency to locate responsive records. Notwithstanding issues with agency workload, if a request can be as specific and narrow as possible, then the response will be too.
Narrowing Does Not Mean Limiting
To be clear, narrowing a request does not mean one is excising potentially responsive records. A narrow request is simply “trimming” the inquiry so as to provide specific, clear guidance to direct the agency in charge toward potentially responsive 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 you get on that broad request will likely vary considerably. The request may take longer, and there may be several levels of clarification needed. Do yourself, and the agency, a favor and proactively clarify the scope of your records request. The response will be worth that initial effort.
Key Search Terms
Other ways of narrowing a request involve key search terms and express exclusions. Providing the public agency key search terms, like names or subject lines, is a highly effective tool in public records requests. Not only does this aid the agency in its time to identify responsive records, but it provides “mile markers,” if you will, for your own requesting process. Especially if you are making a series of requests with one agency, or multiple, being able to cross off these key search terms from the to-do list ensures that you are covering the bases (i.e., the agencies or subject matter) that may be responsive to your inquiry.
On the other side of that coin is expressly eliminating components of a search. For instance, if you are seeking records pertaining to environmental conditions on a particular property or permit, you may want to expressly exclude types of permits, like fire permits, on file that you know are not relevant to your request. Identifying and limiting key search terms provide the pathways by which the agency will locate the requested records.
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 requestor should specifically identify the file or format type for the requested records. For example, if a requestor 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 whatever form it believes is responsive. That may mean an Excel sheet with unidentifiable information or categories, and this may not be what the requestor was hoping to review (or try to translate).
Armand Resto-Spotts is an attorney at Jordan Ramis PC who focuses his practice on land use, real estate, and environmental law. Contact him at firstname.lastname@example.org or (360) 567-3900.
Thank you for your interest in this article. The information contained in this article is for the general interest of the reader and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact an attorney in our land use and zoning practice group.