BUILDING A CASE THROUGH PUBLIC RECORDS

Federal, state, and local governments, as well as their various agencies and subparts, generate records for countless reasons. The public has a great interest in transparent government. As a result, there are laws on the books for the safekeeping and release of public records. Under federal law, there is the Freedom of Information Act (“FOIA”). Washington and Oregon have their own public records laws, too.

What is a public records request?

Public records laws were originally about the citizenry being able to hold its government accountable for its actions. There is an old maxim on the topic that says “Sunlight is the best disinfectant.”  On a day-to-day basis, public records let us know what is happening with our tax dollars, and more importantly, how the public employees think and operate. On a broader systemic basis, public filings can reveal intricate business ties and conflicts of interest. In the context of a personal injury case, public records can reveal the basic facts of what happened, how it happened, and the fallout.

In short, you or your attorney generates the request for certain documents or other records. The request is submitted to the correct person or entity at the agency or governmental body in possession of the records. The governmental agency responds, usually with an estimate for how long the request might take to fill. After that period has run, the responsive records are sent, and you have the necessary records.

How does it work?

As an example, think of a “run-of-the-mill” rear-end car crash. You are stopped at a red light, a following driver is not paying attention, and hits your car, causing injury. A bystander calls 911, the police respond and investigate, and they interview the other driver. The police issue him a citation, the other driver contests it in court, and then he is found to have committed the infraction. You file a lawsuit because his insurance company is somehow denying liability, and you find out the other driver is saying you stopped in the middle of the road for no reason.

There are a several public records that could be used to counteract this assertion. For example, the 911 call might contain the identity of an independent witness, along with her contact information, that backs up your story. The police report might contain admissions from the other driver that he was on his phone or otherwise distracted. There might be photos, and the police officer might have stayed back to observe any potential malfunctions with the traffic light.

Some more advanced ideas could include a request for video footage that the officer might have created from a dashboard or body camera—if the officer has one—which could have the other driver making admissions. The court file for the citation, along with the recorded proceeding of the other driver’s contested hearing in which he may have made wildly different statements about what happened than what he said to the police earlier, or in his answer to your lawsuit later. With the records from appropriately worded requests sent to the correct governmental entities, you could go from being blamed for the crash to winning the case on liability and requesting attorney fees for your efforts to deal with the driver’s frivolous defense.

What else can you investigate with a public records requests?

There are other uses for public records requests beyond investigating a car accident. In a case against a public entity, there might be incident reports or emails on the subject. In a worksite injury case, OSHA might have investigated and already drawn conclusions about how the injury happened and who might be at fault. In a nursing home negligence case, the Department of Health might have investigated, and their file, along with their findings, could be publicly available. A public school district might have surveillance footage of an injury happening on their grounds. Finally, in a liquor establishment/dram shop case, the DUI investigation and police report might say exactly where the adverse driver drank, how much, who he or she was with, and other information that will help with the case for liability against the bar. Although this list is by no means comprehensive, it hopefully gives you a good idea of what kinds of reasons you might use a public records request.

Do they have to give me whatever records I want?

It’s not all “sunshine” and roses, if you’ll forgive the pun. Public entities do not always want to hand over smoking gun evidence, and they sometimes have legitimate needs for privacy. If there is an active law enforcement investigation, a public safety concern, protected private information, attorney work-product privilege, or other good reason to not release the records, the agency might say they are “exempt” from disclosure. This could create litigation over whether the records are to be released, which can be expensive and time-consuming.

Conclusion

Ultimately, public records requests are a powerful tool in an investigative toolkit. Public records can help build a case for liability or damages, they can give you a roadmap for the police investigation, they can provide impeaching evidence, and other valuable information. However, be aware that these cases can get tricky. If the request is not done correctly, it can be difficult to assess whether the denial to provide certain records was appropriate. If you have questions about a personal injury case or a public records act associated action with the case, please feel free to call us for a consultation.