An analysis of HB 1128, Washington State, regarding the Public Records Act
Several eloquent arguments were made on both sides in the Jan. 25 legislative testimony over HB 1128.
Legislators wisely elected to revisit the language, so we have a brief opportunity to affect how the bill is worded, if changes to the Public Records Act are indeed deemed to be necessary.
I'm not well versed on bill writing, but I'm intimately acquainted with what can happen when a public agency is allowed to re-interpret the Public Records Act at will. If a bill must be passed, it must also protect ordinary citizens and whistleblowers. Following are issues I see with HB 1128, based on my experiences and on some of the testimony given before the legislature.
Premise: Terms and rules must be clearly stated and narrowly defined so that all citizens - including the "least among us" - are treated equally and fairly under the law.
Problem: The language in HB 1128 is subjective, allowing public agencies to decide for themselves what constitutes an "undue burden."
Potential problem: Some have suggested different rules for favored people.
· The terms of HB 1128 are vague and allow agencies to unilaterally decide what is meant by "harass," "intimidate," "punish," "undue burden" and "retaliation." Agencies also will be able to interpret and apply the law independently of another agency. For example, one county may decide that a request is reasonable and fill it for the requester, while another county may decide the request is unreasonable and file for an injunction.
o Where is the definition of the line between "persistence" and "harassment"?
o If a citizen seeks a large amount of data, is that automatically an undue burden?
o If a citizen works for years to hold an official accountable, is that "punishing," "threatening" or "intimidating"?
· All terms must be clearly and narrowly defined IN the legislation, allowing courts to appropriately enforce the law. Otherwise, the law could be applied unevenly or with bias.
· Clear definitions of terms also are necessary to protect citizens. Otherwise, well-intentioned citizens won't know where the line is between "persistence" and "harassment."
· A public official who testified for HB 1128 said exemptions to HB 1128 can be made for the media. A Spokane official said no one wants to upset the media so they'll all go way out of their way for the media.
The media's access to public documents must be protected, but not via a special exemption. Access to records is a citizen right and must be extended equally to all.
Premise: No bill should be written that allows agencies to deny records at will to citizens.
Problem: HB 1128 would allow agencies to deny records at will to citizens.
· An ability to file for injunctions is easily abused.
Agencies could choose to file as a way to put off requesters, betting that most would give up, be unable to hire an attorney, run out of money, or be intimidated away from the request before it's filled. Public agencies are not limited by having to spend their own money; they have lawyers on staff or retainer who are paid for by taxpayers.
· An ability to limit the time spent on requests each month also is easily abused, as is the ability to prioritize (without a time limit).
An agency could simply never find the time to fill problematic requests - especially those for records suggesting malfeasance. Agencies can easily "make work" for themselves, overestimate the time it will take to fulfill the requests, repeatedly ask "for clarification" from requesters and purposefully increase the time they must spend on requests. All of this is without oversight by an independent person or agency.
· A public official who testified for HB 1128 acknowledged that her example wasn't actually abusive. "It was just time-consuming." Under HB 1128, other "time-consuming" or problematic PRRs likely would receive the "injunctive-relief" solution.
Premise: Any legislation must be written to protect the interests of agencies and citizens, including the "least among us."
Problem: HB 1128 is written to protect agencies, and it's based on assumptions about agencies that aren't universally true:
· The entire premise of HB 1128 rests on a rosy assumption that governmental agencies want us to know what they're doing with our money. Citizens are supposed to blindly trust in agencies they might be investigating.
· Theoretically, HB 1128 was written to protect agencies from abusive citizens. There is nothing in it to protect citizens or whistleblowers from abusive agencies.
A person who testified for HB 1128 gave an example of "wonderful" records requests that asked for class names for reunions. Obviously, that isn't what's at stake here.
· Proponents of HB 1128 said they have implemented "safeguards" for citizens. However, as Rowland Thompson, Allied Daily Newspapers, noted, the first section of HB 1128 is all about what happens AFTER the courts are called in.
o Giving citizens a "notice" of legal action is not a "safeguard." (To mix a metaphor, it's like closing the barn door after the lawyer is hired.)
o "Continuing to fill the request" while the court weighs an injunction is not a "safeguard." The agency's goal obviously is to not fulfill the request. (And it wouldn't have to, considering the mere five hours per month it would be required to spend on PRRs.)
o "40 years of case law being on the side of requesters" is not a "safeguard." It's fake reassurance. If an agency didn't believe the court would find in its favor, why would it file for an injunction? And once a motion for an injunction is filed, it's no longer a fair fight. Taxpayer money will be used by agencies to argue that requests should not be filled. Requesters who are not attorneys cannot possibly hope to know court procedures, court rules and brief writing. They will have to hire an attorney. The average citizen who faces a motion for an injunction will find himself in a David versus Goliath situation.
· HB 1128 could be used to attack, punish and intimidate requesters who are trying to hold an agency accountable.
Prior to any determination by the court, a requester would have to pay for a lawyer to defend the records request. That alone could easily bankrupt most citizens.
· HB 1128 could be used to threaten defamation of character.
Citizens could be determined to be threatening, harassing or retaliatory, in a court of law, in an official public record. Because of HB 1128's option of a "summary proceeding," that determination could be made without citizens being present (and able to defend themselves). Citizens would have to appeal, again paying for a lawyer. Even if citizens won an appeal, their reputation is unlikely to be restored. How would a determination like that follow a citizen through life? And ultimately, there would be no penalties for the refusal to provide records. How many citizens would pursue this?
· HB 1128 raises constitutional issues.
Citizens are constitutionally guaranteed the right to petition their government for a redress of grievances (noted by Bill Will, Washington Newspaper Publishers Association). This constitutional right is infringed upon by HB 1128.
· Briahna Taylor, Gordon Thomas Honeywell Governmental Affairs, "specializes in advocating for cities, counties, and other local governments to the Washington State Legislature and Executive Branch." (bolding is mine). Her interests are clearly seen:
o in her two supposed "safeguards" of a) providing notice to requesters and b) supposedly continuing to fulfill requests while legal action is taken
o in claiming counties wouldn't engage in frivolous injunctions and do not want citizens to have to go to court,
o in reassuring us that courts have traditionally favored requesters in lawsuits
o in saying requesters could submit a "statement of purpose" on why they want the records so courts could see if the requesters have a "legitimate purpose."
Her argumentation is not supported by logic, by the evidence, or by the obvious interests of the public agencies. In addition, agencies don't spend their personal money. The legal consequences of an agency's inappropriate use of legal action are rarely personal to public officials. I've already seen how readily officials will spend taxpayer dollars on legal action against taxpayers.
· HB 1128 does not eliminate citizens' right to maintain anonymity, however anonymity would be more difficult (and expensive) to maintain under HB 1128.
The option of anonymity must be protected. One public official who spoke for HB 1128 said the agency puts online all of the PRRs they receive, noting the time spent on each. That action is inherently intimidating. The agency has carte blanche to calculate its own time. Agencies can easily inflate their estimate of the time they'll spend. Assigning requests to an inept, corrupt or inexperienced person in the agency can significantly add to it. Meanwhile, requesters have no opportunity to defend or explain themselves.
· Current PRA law doesn't allow agencies to ask requesters why they want records. HB 1128, however, says a requester's "statement of intent" could be weighed in determining whether a request is abusive.
If a requester refuses to be identified or to offer such a statement to a court, could that refusal weigh against him? What if the requester suspects that fraud or wrongdoing is taking place in an agency? If the requester publicly states this, it could be defamatory and subject to civil action.
· HB 1128 could allow courts to make decisions on the basis of one point of view - the agency's.
Even well-intentioned courts won't know the background or context of a records request. To understand and make a judgment on whether a requester is "well-intentioned," they must hear from the requester. But HB 1128 allows agencies to move for summary judgment, which means requesters must argue their case in writing to the judge, or hire someone to do it. Even if the requester is permitted to appear in court, the requester is now identified and must explain in a courtroom - in front of the agency - the context and background. (Anonymous requesters must hire and pay for a proxy.) Going back to the need to protect "the least among us," not all citizens are able or willing to articulate their thoughts in front of a judge.
· HB 1128 essentially eliminates consequences to agencies for operating in bad faith.
Under HB 1128, if an agency loses its motion for an injunction, the requester still has no financial remedy. Even if a governmental agency files for an injunction in an effort to intimidate a requester or to hide vital information from the public - there is no penalty under HB 1128.
· HB 1128 asks courts to make decisions about a requester's intent based on what might be flimsy evidence.
As every lawyer knows, establishing "intent" can be difficult. Rowland Thompson wondered how "nefarious intent" is determined simply by a person asking for records. (Establishment of intent is even harder if the citizen isn't invited to testify.) The process could easily become a railroading.
Premise: Legislation should be workable for all citizens.
Problem: HB 1128 is not workable for citizens. Its net effect is to de facto eliminate the PRA for most.
· HB 1128 forces certain requesters to hire an attorney. That eliminates the PRA for most citizens. Meanwhile, public agencies can use publicly funded lawyers and a bottomless pit of taxpayer dollars to defeat public records requests.
· A pro-HB 1128 speaker suggested using "discovery law" as a solution. This also requires a lawyer (and could be used to intimidate requesters).
· HB 1128 eliminates penalties, regardless of the outcome. That spells the end of lawyers taking a case on contingency. It also means no consequence to agencies for operating in bad faith.
· HB 1128 gives citizens a chance to modify the request, but agencies can still file for an injunction, and without further notice.
Citizen requesters don't always know how to ask for things, and there isn't a lot of help out there. We must muddle through it. In Spokane, a requester (who has filed a single request with the agency) was publicly deemed to be abusive. Another requester, new to the process, was publicly attacked before she ever had a chance to modify her request. The agency did not want to fill those requests, and as of this date, a year later, hasn't.
· A pro-HB 1128 person said this bill "allows people to go to court." Oh, yay.
No citizen wants to go to court. Few have the time to do it, the knowledge, or the money for a lawyer. Only people who spend their days in court, or who regularly deal with publicly funded lawyers, see legal intervention as the "go-to" option for citizens. And the courts are overwhelmed with cases. Funding for the courts has not increased much in recent years. In fact, programs for the very needy have been cut. Judges will tell you that dealing with individuals who represent themselves significantly increases the burden on the courts.
· James McMahan, Washington Association of County Officials, said HB 1128 would simply allow agencies to "ask for an outside opinion."
Seriously? Courts don't issue advisory opinions. The courts are used to determine actual controversies and are adversarial. The more one has to spend on lawyers, the more likely it is that the client will win the case. Having an advisory opinion is an excellent idea, but that is done more efficiently and less expensively by expanding the authority of the Open Government Ombudsman, Tim Ford, for the Attorney General, or Toby Nixon, president of the Washington Coalition for Open Government. Do citizens go to court to ask for an outside opinion? Do we force others to cough up thousands of dollars to defend themselves, just so we can get an outside opinion? The argument is silly and without any merit.
Other thoughts:
· A pro-HB 1128 speaker mentioned a "safe harbor component." I'm not sure if he meant that to apply to agencies or the public. It certainly isn't applied in the bill on behalf of citizens.
· Tim Blanchard, lawyer, said, "Sometimes you have to ask for all of something to know what there was." He said just because we might ask for a lot of things, or are considered to be a "serial requester," that doesn't mean we aren't "well-intentioned."
· A pro-HB 1128 comment was that resources were being diverted away from "doing the work the agency is there to do." But part of the agency's work is to provide records to the public when asked to do so.
· Another pro-HB 1128 comment was that PRRs negatively affect students and teaching. How do PRRs do that? (Are students being yanked out of class to go through records?)
· Almost all of the public records requests problems cited on Jan. 25 were because of former employees. Perhaps a fix is in there somewhere.
· The Public Records Act already contains 500 or so exemptions to disclosure. Rowland Thompson said: "It isn't like we haven't thought about these things ... We've been doing this for 40 years. It's a statute that some will say is long in the tooth, but others will say it has been perfected gradually over time by committees like this ... There are all sorts of other reasons that people need these records, and why they're available anonymously, so that the least among us can keep track of agencies and be able to take on their government pro se ..." He said it can be more expensive for agencies to disallow overly broad requests than to allow them.
· Protective mechanisms are already in place for agencies: "Triaging" requests; placing records online; and the "rolling disclosure" option. Options can be clarified and improved without limiting the Public Records Act for citizens.
· Perhaps records requests should be contracted out to organizations and people who aren't beholden to the agencies.
Rowland Thompson said the number of public records is growing exponentially. He's correct. National databases now gather everything on everyone, shipping it between states and agencies and between governments and corporations. It's alarming, on the face of it, but also in its implications for the PRA. Agencies will continue to seek relief from the PRA until they're finally free of it. We must develop a long-term, workable solution so we don't have to debate this every year.
As technology has provided agencies with a problem, it also can provide the solution. The tech industry -always up for a lucrative challenge - can develop ways to gather records more efficiently than is currently done. Additionally, Tim Ford, open-government ombudsman for the Attorney General, and Toby Nixon, president of the Washington Coalition for Open Government, can offer suggestions and recommendations for protecting agencies while still protecting citizen rights. Expanding the authority of the Ombudsman would be a tremendous first step. Theoretically, the Ombudsman is beholden to no one.
If the PRA is to be modified, it must be strengthened on behalf of the people for whom it was passed. Currently, there is little help for whistleblowers, little enforcement ability, insufficient funding, and almost nowhere for a citizen to go for explanations or guidance. The Open Government Ombudsman, first hired by Rob McKenna, has valuable information on the Attorney General's Web site. He is helpful, but his office is underfunded and it has extremely limited authority. Unless this changes, requesters are on their own. Agencies and their lawyers can stonewall requesters. Agencies and their lawyers can (and do) interpret the laws in ways that favor the agencies. The Public Records Act can be made clearer, easier to access, and easier to enforce. That would benefit everyone, including the agencies.
For decades, this Act has been a practical and symbolic representation of Washington State's commitment to open government. It's been a fine example for the rest of the country. We have an opportunity to strengthen it, and thus strengthen open government in Washington State.
Ultimately, any change to the Public Records Act must also protect whistleblowers and other citizens, or I guarantee to you, that change will be used against us.
Laurie H. Rogers
P.O. Box 48151
Spokane, WA 99228
wlroge@comcast.net
509-468-0402
509-599-0913 (cell)
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