OLYMPIA — A recent increase in large payouts from public records disputes has some in state government considering new ways to avoid costly and drawn out court battles.
One idea being considered by Attorney General Rob McKenna is a proposal put together by two well-known public records attorneys to “co-mediate.” While single-person mediation already exists and is used in some state cases, the idea of co-mediation allows for two mediators, both well-steeped in public records’ laws — one who represents the requester and another to represent the agency or local government.
Greg Overstreet, an Olympia attorney specializing in media and disclosure law, said he first thought of the idea of offering co-mediation services late last year, and that his idea was affirmed by a KING 5 television investigative report that found that public records lawsuit jumped from $108,000 in 2006 to nearly $1.7 million last year. The largest award was in December, when a Pierce County judge ordered the Department of Social and Health Services to pay a record $649,896 to an Elma woman who sued the agency for withholding records. The state is appealing the case.
Overstreet said that while co-mediation may not work in all cases, it may offer a better chance to get people to the table in the first place.
“The problem has been the difficulty of finding a single mediator who is trusted by both sides,” he said. “The other problem is finding a mediator who knows the public records act and the nuts and bolts of how the public records process works in real life.”
Overstreet, who regularly represents records requesters in disputes, reached out to Ramsey Ramerman, president of the Washington Association of Public Records Officers who has assisted agencies on public records issues. They’ve since formed Open-Government Mediations and Training, and have pitched their idea to the state.
“We have a common goal,” Ramerman said. “We want to resolve the dispute, get the records, save money and build trust. All the sides want the same thing.”
McKenna noted that his office already has an ombudsman that informally tries to mediate in some cases, and that single mediators have been used in other cases. But he said he’s told his office to find a case that could potentially be a pilot test case for Overstreet and Ramerman.
“I’m curious to see whether or not there are advantages,” McKenna said. “I’m interested enough to want to move forward and test it, if we can find a right case.”
Gov. Chris Gregoire may be interested as well.
“With the high costs of these cases, certainly anything to get at that is intriguing,” said Cory Curtis, a spokesman for the governor.
Under state law, state agencies and local governments can face fines of up to $100 a day for failing to turn over records. But the biggest cost driver, Overstreet said, is attorney’s fees.
“If mediation starts at the beginning of a case, it could prevent some of these judgments that are for tens of thousands or hundreds of thousands of dollars,” Overstreet said. “There’s some really difficult, contentious cases out there, and if public records lawsuits aren’t settled quickly, they can balloon out of control on costs.”
Prison inmates make up more than 60 percent of the litigation cases, according to McKenna’s office. In 2009, a new law was passed intended to block prisoners from using public records laws to intimidate or harass state agencies and employees.
The measure was in response, in part, to Allan Parmelee, who is serving 17 years for bombing the cars of two attorneys. Parmelee has filed hundreds of requests and won thousands of dollars in penalties in cases where the Department of Corrections fought his requests. Another bill passed last year prevents any penalties from being awarded to prisoners, unless a court finds that an agency acted in bad faith.
“Unfortunately a small number of people are abusing the system and racking up the costs,” McKenna said. “We try hard to protect the public records system from abuse that would undermine us.”
Overstreet said his firm wouldn’t handle prison requests, in part because of concern he has over security, but also because he believes a lot of the prisoner cases aren’t likely to be settled, “because they want a gigantic judgment.”
Toby Nixon, President of the Washington Coalition for Open Government, said he’s long been an advocate of alternative options to resolve public records disputes.
“The key is to get access to the records, and if mediation allows that to happen and to reach a conclusion at a lower cost so much the better,” he said.