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Saturday, February 16, 2013

Public Records Act: Speak up for your rights now, before they're gone

By Laurie H. Rogers

“The school board made us many promises, more than I can remember. They only kept one.
They promised they would take away our right to know what they’re doing. And they did.”
-- (A rephrase of a famous comment from Sioux Chief Red Cloud)

The Washington State Public Records Act allows citizens to obtain records from government agencies. It’s a critical aspect of open and transparent government.

House Bill 1128, however, would gut the Public Records Act, making it ineffective and useless. HB 1128 is currently before the House Rules Committee in Olympia. It's supported by a glut of public officials and ten associations for public officials. It’s also supported by legislators from both parties, in what amounts to a bipartisan shellacking of citizens.

Government officials are telling legislators that records requesters are being abusive, making excessive requests and diverting valuable resources away from the agencies’ primary purpose. Unreasonable requests are costing countless dollars, they claim, and something must be done to stem the tide.

But while some individuals do make abusive requests, HB 1128 punishes everyone – similar to restricting cars because a few drivers crash, or restricting swimming pools because a few swimmers drown. Part of what agencies are there to do is provide records to the public when asked. And almost all of the problems cited in testimony to legislators refer to former employees, not to the public at large.

A more productive, cost-effective, cooperative solution would be to expand the authority of the open-government ombudsman, or some other independent authority, to review requests and provide objective guidance to agencies and citizens. Such a solution was proposed by the Attorney General in 2011. But promoters of HB 1128 instead want authority to rest with public agencies and the courts.

HB 1128 would: Allow agencies to decide unilaterally if requests are burdensome; allow agencies to file for injunctions against the requests; eliminate penalties to agencies for operating in bad faith; and force requesters to argue their case in court (thus identifying themselves) or hire a lawyer to do it for them. It also can eliminate a citizen's right to future requests from a particular agency.

Even if a citizen has the money, time and willingness to battle a government agency and its army of publicly funded lawyers, it’s already difficult to find a lawyer who knows the Public Records Act (PRA), who doesn’t work for the agency in question, and who’s willing to take on such a case. HB 1128 would make finding that lawyer next to impossible. These concerns and others have so far fallen on deaf ears.

Supporters of HB 1128 say they won’t use the bill to obstruct or intimidate requesters, and that they will release records to “well-intentioned” citizens. But HB 1128 allows agencies to delay and obstruct requests and to withhold records from “well-intentioned” citizens. It allows agencies to intimidate citizen requesters through legal action. This makes assurances from supporters, such as the Washington State Association of Counties, specious and illogical.

HB 1128 is a very bad bill. It’s designed to protect the government from citizens, while doing nothing to protect citizens from the government. Worse, it allows agencies to use public dollars to stymie full disclosure to the public.

Here is just one example of why the Public Records Act is critically important to citizens, and why it must be retained for all the people of Washington State.

Board directors of Spokane Public Schools have been trying for more than a year to undermine the Public Records Act – first with their 2012 Legislative Priorities, and then with their 2013 Legislative Priorities. They’ve spent a lot of time and effort trying to modify the PRA, when their real mission is to oversee the education of 27,000+ children.

In December 2012, I asked the directors to explain their latest attack on the PRA. Four refused to answer my questions, deferring to the board president, who said he would answer for all. Bob Douthitt’s response suggests that no board director showed the slightest interest in obtaining citizens’ perspective on the matter before they all charged ahead with undermining the PRA for all of us.

Last week, I did a little more research.

The Spokane school board passed their 2013 Legislative Priorities unanimously on October 24, 2012. But that isn’t when their latest attack on the PRA began.

Early in 2012, the board had failed in its first effort to undermine the PRA, with Senator Lisa Brown’s SB 6576. Brown’s legislative aide, Marcus Riccelli, told board directors to start earlier in the year if they wanted to get a bill passed. Directors indicated in a board meeting that they would.

On April 25, two weeks after the legislative session ended, board director Jeff Bierman asked other directors for ideas for new legislative proposals. Just 28 days later, their 2013 Priorities were finished and unanimously adopted (with one director absent). The Priorities were steered to completion by Bierman, co-legislative liaison Deana Brower, and the superintendent and her cabinet. They include:
  • eliminating the right of records requesters to remain anonymous
  • forcing an “in-house” appeals process on records requesters (thus forcing requesters to appeal to employees of the same agency that refused to provide records)
  • double-charging taxpayers for certain salaries associated with records requests.
This board wanted to adopt their 2013 Priorities early so they could push them with legislators over the summer. They also wanted time to persuade the Washington State School Directors Association (WSSDA) to make the Priorities part of WSSDA’s platform. WSSDA agreed, making undermining the Public Records Act a priority for all school boards that acquiesce to WSSDA.

Spokane Public Schools’ board president now is on WSSDA’s “legislative team.” WSSDA now is an official supporter of the execrable HB 1128.

Why would these five school board directors fight so hard to undermine the Public Records Act? They’ve had a huge head start, campaigning hard for the Priorities the moment the ink was dry. Board directors claim they don’t intend to undermine the PRA, but that assertion isn’t believable, considering their Priorities and the way they’ve gone about pushing them. Why are they so intent on limiting public access to public records? I don’t know, but I can guess. Read on.

Open public meetings:

Under Washington State law, government agencies must make decisions in public and after public notice. This is known as the Open Public Meetings Act. But these directors didn’t put their 2012 Priorities or their 2013 Priorities before the public. They didn’t place them on the district Web site until after I asked about them. At no point was there a discussion with any records requester, no discussion with the people about their determination to help rip a people’s law from the people’s hands.

Douthitt said the board “discussed and approved” the 2013 Priorities “at a board business meeting,” but I looked in vain for a pre-adoption discussion in all of their 2012 minutes. I see brief procedural comments, but no discussion or airing in public about the specific Legislative Priorities that were being considered. When and where were the discussions held?

Some records show board directors communicating by email about the PRA to all other board directors – so, in a quorum. Records show other topics being discussed by email between all members of the board. By law, discussions constituting a board quorum are supposed to be held in public.

PDC Complaint:

According to Washington’s Public Disclosure law, public officials are not allowed to use public resources to promote ballot propositions or elective campaigns. In 2011, based on the results of two records requests, I filed a complaint with the Public Disclosure Commission (PDC) regarding Spokane Public Schools’ 2009-2011 election activity. The PDC elected to formally investigate, and that investigation is ongoing.
Almost immediately after Brower took a seat on the board in 2011, after the PDC complaint was filed, and after the PDC announced its investigation – the first board attack on the Public Records Act began.


Mark Anderson, who handles the district’s records requests, has delayed providing records to certain requesters, refused to provide certain records, and refused to fulfill certain requests. (See this article for a list of various district responses to certain requests.) He did not provide all of the responsive records for a request of mine from January 2011, and a lawsuit was filed early in 2012 to obtain the missing records. After this lawsuit was filed – the outcome of which is not yet resolved – the district released to my attorney and me thousands more records and several indexes of exemptions and redactions.

Anonymous Requests:

The PRA does not prohibit the filing of anonymous requests. However, Anderson refused to provide records for two anonymous requests from last June. The requests pertain to these board directors – to a) their first attempt to undermine the PRA and b) their communications while they ran for the school board. Despite directions from the new superintendent to fulfill the requests, they remain outstanding.

Another requester was accused last year of using a pseudonym and was told to provide proof of identity before records would be released. That records request, regarding the school board’s performance assessment of Superintendent Nancy Stowell, was ultimately denied.

The school board now is attempting to eliminate the public’s right to file anonymous requests, claiming that communicating with anonymous requesters is difficult. Email records I’ve been sent don’t indicate that. However, emails between requesters and Anderson do suggest that communicating with Anderson can be difficult. Some requesters have been repeatedly criticized in the community and the press.

In-House Appeals Process:

The school board’s 2013 Priority of forcing requesters to go through an “in-house” appeals process means requesters would have to appeal to employees of the same agency that refused to provide records. Who would speak up in that “appeal” for the requester? A lawyer? And who pays for that lawyer?

This “in-house” appeals process could easily be used to intimidate requesters, to financially punish requesters, to force requesters to identify themselves, to delay the production of records, and to put off the application of fees and penalties for a district’s failure or refusal to produce records.

Similar kinds of behavior would be allowed – perhaps even encouraged – by the passage of HB 1128.   On Jan. 25, one of the public officials speaking for HB 1128 was Spokane County Commissioner Todd Mielke, president of the Washington State Association of Counties (WSAC). WSAC is a vocal supporter of HB 1128. At about 56:10 in this TVW video of that hearing, Mielke responds to a legislator’s question about how HB 1128 might affect the media: I will tell you that, it’s not just me as an elected official, but every one of us, who, like you, are hypersensitive to the press. We know that they can kill us, frankly, if they want to, and we’re going to do everything we can not to be on their bad side and to accommodate. We have a rapport. …As an elected official, my advice is always, ‘Don’t pick a fight with the media.’… And (HB 1128) would actually give us more time to respond to (media requests) and be sensitive to those needs because of the public’s need to know.Gag. (Mielke omitted the fact that in March 2012, Spokane County settled a public records lawsuit for about $400,000 because the County didn’t provide certain records to the Neighborhood Alliance.)

Another WSAC official immediately followed Mielke by saying WSAC would consider incorporating an exemption for the media. And they did. HB 1128 now contains an exemption for the media – a blatant attempt to mute dissent from who they see as their biggest opposition.

Now we see their Priorities. Not you. Not your children. Not tax savings. Not open government. With HB 1128, these officials are not operating in the public’s best interests.

How do ordinary citizens fight off these attacks on the Public Records Act from self-centered officials, myriad associations that lobby for government interests, hundreds of publicly funded agencies, and all of their publicly funded lawyers?  This effort to undermine open government in Washington State must be stopped. Please call legislators today and tell them to vote NO on HB 1128.

Please also forward this article to other like-minded citizens and ask them to do the same.

Please note: The information in this post is copyrighted. The proper citation is:
Rogers, L. (February 2013). "Public Records Act: Speak up for your rights now, before they're gone." Retrieved (date) from the Betrayed Web site: