Don’t Let Local Governments Gut the Public Records Act

K George mug (204x242)-1-80x100By Katherine George
Board Member, Washington Coalition for Open Government
Attorney, Harrison-Benis LLP, Seattle

For 40 years, Washington’s Public Records Act has been a window for anyone to see what’s going on in state, county and city governments, schools and other local agencies. As a recent example, this landmark law helped The Seattle Times uncover troubles leading to Rob Holland’s resignation from the Port of Seattle Commission.

The bad news is: Our local governments are fighting hard to weaken the act. And some state legislators are championing the cause of scaling back the public’s right to know.

Do you want to know how your tax money is spent, how well a program is working, or whether an elected official is meeting your expectations? Records can tell stories that you will never hear from news releases.

Because of the Public Records Act, the government cannot simply say, “It’s none of your business,” or, “Sorry, we’re too busy.” The act requires “promptly” granting your records request so that you can find out information while it still matters.

As research for an upcoming legal publication, I recently reviewed every ruling by this state’s appellate courts related to the Public Records Act since 2010. And the good news is the Washington Supreme Court and the state Court of Appeals are, for the most part, zealously guarding the integrity of the voter-approved act.

But strict enforcement won’t matter if the law is gutted. Substitute House Bill 1128, which passed out of the House Local Government Committee in February at the urging of city and county lobbyists, would allow agencies to limit the time they spend processing records requests. King County, which serves nearly 2 million residents, could spend as little as 12 hours a month responding to all records requests combined. Once an agency reached its processing limit, it could shut down public access to records, no matter how many requests might be pending and regardless of whether a local disaster, scandal, or major proposal created pressing public concerns.

It gets worse. The same bill would allow either an agency, or anyone named in a record which you have requested, to file a lawsuit against you in order to block your request. A court could block the processing of your request if it finds that you made the request to “harass or intimidate” the agency or that your “records request will materially interfere with the work of the local agency,” whatever that means.

Once you are sued, courts could consider why you want records, what requests you have made in the past, and whether a “burdensome number of records” is involved. SHB 1128 would destroy some of the bedrock principles of the Public Records Act, including that a requester’s identity and interests are irrelevant, that inconvenience is not an excuse to hide records, and that an agency can’t conceal a record unless it falls under one of the law’s narrow exemptions.
Neighborhood groups, businesses, civic organizations and individual citizens could be dragged into court for being inquisitive. Records revealing corruption, waste or mistakes could be hidden from public view regardless of whether they fall under the disclosure exceptions in the Public Records Act.

City and county lobbyists have complained that too many requesters are wasting scarce government resources by making “abusive” records requests. Tellingly, the fiscal note for SHB 1128 could not identify specific savings and acknowledged that Snohomish County spent only 0.2 percent of its budget complying with the Public Records Act in 2010.

Providing a window to open government, like any other public service, does come at a price. But it is no less a part of government than police and fire protection, libraries, public transit, parks, education and other core services. In fact, transparency is necessary to find out if all other services are adequately funded and managed.

For 40 years, the Public Records Act has reminded our state and local officials that government belongs to, and answers to, the people. State legislators should heed the message: Leave our window open.

Katherine George is a Washington Coalition for Open Government board member. A former newspaper reporter and editor, she is an attorney at Harrison-Benis LLP in Seattle. This op-ed originally appeared in The Seattle Times on March 6, 2013.

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