Convicted felon, officials wrangle over public records
Everett city officials, however, maintain the convicted felon is an extortionist set on perverting use of the state's open records law in a scheme to con taxpayers out of money.
City attorneys on May 22 won a key round in their fight against him. They convinced Snohomish County Superior Court Judge George Appel to kill a couple of Harkcom's records requests. One could have forced the city to turn over millions of pages of information.
As part of the ruling, the judge also granted Everett permission to ignore any other records requests from Harkcom over the next 10 years.
It is an unusual case brought under strange circumstances.
Harkcom is an inmate at the Thurston County Jail, awaiting sentencing for a violent home invasion robbery. While killing time in 2013, he repeatedly put pen to paper, writing nearly 50 different area governments, from Bellingham to Longview to Spokane, and state agencies, including the Lottery Commission and Liquor Control Board.
Harkcom's records requests to Everett and the others were similar.
He sought names, ranks, salaries, and driver's license numbers for every employee on the payroll. He claimed to want the records “in order to study the drastic financial deficit which some state employees and their actions/conduct have contributed to and which the requested records will explain.”
Harkcom made a second request in Everett, focusing on the police department. The city estimated that the request could total more than 2.5 million pages of potentially responsive records.
City attorneys Ramsey Ramerman and Katie Rathbun turned to the public records law to make their case against Harkcom.
In their pleadings, they included a letter written by the inmate and intercepted while he was behind bars. Harkcom wrote a buddy's girlfriend in September detailing a plan to rake in millions of dollars by making numerous records requests.
As he explained in the letter, Harkcom was banking on agencies denying his requests or forgetting to include all potentially responsive records.
“If someone (we) makes a request for records and they forget to disclose a ‘little portion' they're (expletive), and have to pay 15.00 — 100.000 dollars per day — per record! So this brings us to the current. Say someone requested 100 thousand or 1 million records and were denied access to portions of the request, then essentially, they'd have to pay per day/per record. We're talking millions of dollars here,” Harkcom wrote.
City officials say Harkcom tried to shake Everett down for $26,400 after it declined to provide him the driver's license numbers of employees. Harkcom wrote that he was willing to settle the matter if the city forked over the money. He warned that they would face stiffer fines if the matter went to court.
In court papers, Ramerman said Harkcom didn't seem interested in the information itself, focusing only on putting a price tag on the request.
“This is not supposed to be how the (public records) law should be used,” Ramerman said. “The whole idea of suing a requestor makes me uncomfortable. It's a big deal, but if ever there was a case to do so, this is it.”
Legislators in 2011 tweaked state records law to bar inmates from collecting fines in records cases, so long as the agency acts in good faith. Furthermore, lawmakers created a process to enjoin people serving a criminal sentence from using records laws to harass or intimidate others.
The city argued that Harkcom fit the criteria.
The public records law “is so important. We need to be aware of these types of actions and say, ‘It's not OK,'?” Ramerman said.
The case shows that governments have a good tool to respond when records requests are brought by inmates intent on creating mischief, said Michele Earl-Hubbard, an open government attorney from Seattle.
She's more worried that some people around Washington have in recent years advocated giving government tools to block requests that officials merely find troublesome.
“It is always scary when you let the government decide which requests are worthy answering and which aren't,” Earl-Hubbard said.
The records maintained by state and local governments belong to the public, she noted. If accessing the materials disrupts government operations or is otherwise burdensome, the law allows agencies to provide responsive records in installments. The agency can stop processing the request if the party balks at reasonable copying costs or doesn't gather up the documents when made available.
People who try to use records laws to harass others or to make deliberately burdensome requests usually go away when an agency treats the request as it would any other, the lawyer said.
“It kind of weeds itself out,” she said.
People in governments around Washington often complain about the cost of making public records available and some communities — notably Gold Bar — even have claimed to be teetering toward bankruptcy because people are demanding documents and threatening litigation.
The Washington Coalition for Open Government in February released results of a study aimed to determine if area governments truly are being crushed by the costs of fulfilling records requests. The organization had interns submit requests for responsive records to eight state agencies and 96 local governments, including Snohomish and the rest of the state's 39 counties. Other local governments included the cities of Everett, Edmonds, Monroe, Gold Bar and Coupeville, plus the Port of Everett and Monroe school district.
“Of the 104 government entities surveyed, not one could point to any study or even rudimentary analysis of how much it spent providing records to the public,” the report found.
Indeed, nine counties, eight cities and a port district did not respond to the records requests at all, the study said.
Diana Hefley, 425-339-3463; firstname.lastname@example.org.
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