Bill would change Public Records Act

OLYMPIA — State Rep. Dean Takko, D-Longview, has proposed legislation that would mark the biggest changes to the way local governments handle requests from citizens for public records in the 40 years since the creation of the state Public Records Act.

The legislation has been lauded by the associations for counties, school boards, cities and other local government-affiliated groups, who complained about “nuisance” requests, but reactions have been harsh among open government advocates.

“I don’t think having a means where legitimate citizen requests can be subject to punitive sanctions by agencies who are trying to hide government misconduct is reasonable,” Arthur West of Olympia testified last week before the House Local Government Committee, which Takko chairs. “Citizens have a right to have information. … That’s as necessary for the exercise of the First Amendment as ammunition is in the exercise of the Second Amendment.”

The legislation, as currently proposed, would allow cities, counties and other local districts to limit the time they spend handling public records requests to as little as five hours a month. The legislation would also empower local governments to go to a judge and request an injunction to stop producing public records if the local agency can prove record requests were being done in retaliation or to punish the city or county for an action it took or proposed to take, would create “an undue burden on the agency,” would somehow threaten the safety or security of staff or “if fulfilled, would likely assist criminal activity.”

Takko conducted a public hearing on the bill last Friday and, although it’s been slated for a vote this week in his committee, he says he doesn’t expect any kind of vote until some kind of compromise can be ironed out. He expects the different sides to meet on Friday.

“We’ll expand how much time local governments should spend working on public records,” Takko said, noting that five hours is probably not enough time for a larger agency, although tiny sewer districts with hardly any staff may still get a lower amount. “We’ll also place a provision awarding (attorney fees for) citizens who are unfairly targeted for an injunction and a $15,000 penalty against the local government. That should protect requesters from being taken unfairly to court.”

Takko, a retired Cowlitz County Assessor, said he’s siding with local governments on their core concern, however, that there are too many requests for information from those who are just looking to punish their local county for deciding to raise taxes or from angry parents upset that a teacher failed their child on a test.

The legislation would mandate that local governments place online all budgets, agendas, minutes, resolutions, ordinances, a salary schedule for employees, and certain contracts. But Takko concedes most larger local governments do all of that already.

“A lot of this legislation would depend on the trust a community places in their superior court judge,” Takko said. “If a judge can rule on a murder or a rape case, surely we can trust them deciding on if a public records request is handled right.”

Takko also cited the tiny city of Gold Bar, which faces disincorporation after fighting several public records requests from several residents in the community.

“A city should not have to go bankrupt dealing with record requests,” Takko said.

During last week’s public hearing, public officials told horror story after horror story of dealing with record requests.

In Whatcom County, Prosecutor David S. McEachran, said a disgruntled former employee filed 135 requests, with one stack of paper that rose 10 feet off the floor.

“He moved his focus to the city of Bellingham and we thought, ‘Thank the lord,’” said McEachran, explaining the requester had an ex-girlfriend in Bellingham. “He filed 163 requests at the city and they estimate it will take 5 years to respond, costing the government thousands of dollars and this is just in our jurisdiction, but this is happening across the state.”

There were also similar stories in other counties and cities of ex-boyfriends and ex-spouses seeking information on former relationships, tracking their movements via their public employee emails.

In Spokane, apparently a requester sought information on every parcel within the county and any document with the word “resolution” and “structure” in it, which resulted in 1.6 million emails with those words.

At the Evergreen School District near Vancouver, the district last year received 22 record requests from various people and one person who submitted 144 requests resulting in the district increasing employee hours to respond to them. And at the Bethel School District near Spanaway, the school district has had to hire a part-time employee to respond to just one person’s record requests.

“Funding for schools is limited, it’s money we could better use in the classroom,” Bethel Superintendent Tom Seigel told legislators.

State Rep. Marko Liias, D-Edmonds, told local governments that “the devil is in the details.”

“How do we stop people from abusing this process, while also protecting the ability of the public and, also, importantly, the press from doing their job, so while I read the standard to issue an injunction that it strikes me that legitimate press activities could be considered grounds for an injunction,” Liias said. ” “If an official of the government refuses to speak to a reporter and a reporter files a public records request that sounds like it could be retaliation for an action of a local agency for refusing to participate in an an interview.”

Bill Will, the director of the Washington Newspaper Publishers Association, reminded legislators that there are already numerous safeguards in place for local governments. For instance, a city or county could prepare the first batch of results of a record request and if the person never shows up to review it or pay for copies, then the city no longer has to respond to it.

Local governments are also allowed to ask that a request be narrowed, instead of coming up with thousands of records. “It’s a blunt instrument and will not be used just against requesters that clearly have an ax to grind against an agency,” Will said. “It will also be used against people who have legitimate requests who have requests from their local government. It will become political. It will be a mess. Frankly, I have constitutional issues with it. It’s a First Amendment issue.”

Rowland Thompson, director of Allied Daily Newspapers of Washington, noted that there are “500 exemptions to the public records act and it’s been going on for 40 years.” He added that limiting record response searching to just five hours a month “is almost nothing.” And for a local government to mandate a resident go to court to fight an injunction and not provide free legal representation “is the only place where a constitutional right … can be taken away from a citizen.”

“This can be a tool for intimidation and at the very least they should provide representation because they are taking away the most fundamental right, which is the First Amendment,” Thompson said.