March 24, 2020

Proclamation on Open Public Meetings Act & Public Records Acts (No. 20-28)

On March 24, 2020, the Governor issued Proclamation 20-28 on the Open Public Meetings Act (OPMA), ch. 42.30 RCW, and the Public Records Act (PRA), ch. 42.56 RCW. This Proclamation answers critical questions on how public agencies should conduct public meetings and handle public records requests during the novel coronavirus (COVID-19) emergency.

Although the Attorney General’s Office’s (AGO) OPMA guidance, issued before the Governor’s Stay Home – Stay Healthy Proclamation, suggested an opportunity for in-person attendance was required, based on input from the AGO and others, including Pacifica Law Group, the Governor’s Proclamation prohibits in-person meetings. Instead, the Proclamation allows public agencies to hold fully remote meetings without providing a physical location. To hold a remote meeting, the agency must provide an option that allows the public to attend by telephone, with all attendees able to hear each other at the same time. The agency also may provide other remote access options via the Internet, etc. The AGO’s OPMA guidance suggests options that can be used. Consistent with these fully remote procedures, the Proclamation suspends OPMA provisions related to in-person activities and physical locations/sites/rooms until April 23, 2020.

Notably, the Proclamation limits the actions that may be taken at remote meetings to “necessary and routine matters” and “matters necessary to respond to the COVID-19 outbreak and the current public health emergency.” The Proclamation does not define “necessary and routine matters.” The limitations remain in effect until regular public participation is possible. We recommend that public agencies (in consultation with their lawyers) take a careful look at each potential agenda item to determine if it is allowed under the Proclamation or if it needs to wait until the agency is able to provide a physical location for public meetings. We further recommend that at the outset of each meeting, the agency state for the record how the action items fall into the language of the Proclamation.

The Proclamation also suspends certain PRA requirements until April 23, 2020, given social distancing requirements and the strain on public agencies responding to the COVID-19 emergency. For example, the Proclamation suspends the requirement that public agencies send a response within 5 business days of receiving a public records request. Further, during this time, public agencies do not need to allow for in-person services and facilities, e.g., in-person inspection and copying.