On March 24, 2020, Washington Governor Jay Inslee issued an Emergency Proclamation that alters and suspends for 30 days provisions of the state Open Public Meetings Act (OPMA) and Public Records Act (PRA). Businesses and individuals with matters pending before state and local agencies should take note.
The OPMA normally requires that the governing board of every Washington "public agency" transact its official business at regular public meetings taking place at a published time and location.1 Due to the ongoing COVID-19 situation, the Emergency Proclamation bans in-person public meetings. Agencies may meet and conduct business remotely but must provide an option for remote public attendance in a manner that allows "all persons attending the meeting to hear each other at the same time."
Most significantly, the Proclamation prohibits Washington agencies from taking any "action" at a remote public meeting unless it relates to "necessary and routine matters" or "matters necessary to respond to the COVID-19 outbreak and the current public health emergency."
The Emergency Proclamation does not define "necessary and routine matters" that may be acted upon during the emergency period. But the OPMA defines "action" broadly, as any "official business of a public agency … including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, [and] evaluations," as well as "final actions," which include any vote or collective decision by the agency.2
Accordingly, the provision could result in delays in consideration of pending permit and license decisions; the conduct of public hearings; adoption or even deliberation over ordinances and regulations; and any other agency business that is either not urgent or not related to the pandemic emergency.
Regarding public records, the Emergency Proclamation does not suspend the state Public Records Act3 or allow agencies to disregard their obligations under the statute. But the Proclamation relieves agencies of the requirement to provide an initial response to all public records requests "within five days."4 As a result, records requestors may not receive the usual “five-day letter” acknowledging receipt of the request and providing an estimate of the time the agency will require to respond to it.
The Proclamation also suspends provisions in the PRA requiring agencies to make records available for in-person inspection during normal business hours – reflecting that many agency facilities currently are closed or minimally staffed.5
Agencies still must comply with the PRA, including the obligation to provide "the fullest assistance" to requestors. But those making new records requests or awaiting responses to pending requests should expect delays.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.
This article was originally featured as an antitrust advisory on DWT.com on March 20, 2020. Our editors have chosen to feature this article here for its coinciding subject matter.