Agencies routinely violate public information law, audit finds

Herald Staff and news services

When a woman entered the Grant County Sheriff’s Office and asked for a list of registered sex offenders, a sergeant refused to give her one.

"I have no control over how it will be used," the sergeant said, giving an excuse that has no basis in law.

Either through ignorance or on purpose, the sergeant broke the law by refusing to release a document that the state’s public records disclosure law says should be available to anyone.

That sergeant was not alone.

When the same thing happened in Snohomish and Island counties, the women were allowed to see the lists, but not take them. In Snohomish County, she couldn’t even take notes.

"You’ll have to rely on your memory," the clerk in Snohomish County said, which would have been tough since there were 23 registered sex offenders who lived in the woman’s ZIP code area.

An unprecedented statewide audit of local public agencies found dozens of government employees who violated state law by withholding documents that the law says they must release.

Starting June 21, reporters and other staffers from 26 news organizations, posing as ordinary citizens, requested lists of registered sex offenders, reports on crimes, home values, school superintendent contracts and restaurant inspections from agencies in all 39 Washington counties.

Audit results found that agencies withheld documents often enough that Washington residents can’t be certain that local government will give them information to which they’re entitled.

That’s a problem, said state Auditor Brian Sonntag, because when any public employee refuses to release information to the public, then that employee has forgotten who the boss is.

"We’re instructed to do the public’s job. It’s their work, their records we’re safeguarding to make available to the public," Sonntag said. "Government isn’t a private business or a secret club. It belongs to the citizens, and the public has every right to have access to records and participate in their government’s proceedings."

Auditors found no patterns in records denials among large or small agencies or parts of the state. But the findings did show different types of agencies handle records requests in various ways.

Agencies that are supposed to enforce the law were the ones who most often disregarded it.

Police and sheriff’s departments denied requests for information about property crimes at least 55 percent of the time, while sheriff’s departments refused about 16 percent of the requests to produce lists of sex offenders.

In Snohomish County, the sheriff’s office complied, Lake Stevens police partially complied and Everett police didn’t comply to the property crimes request. Neither the Coupeville police nor Island County Sheriff’s Office complied with the records request.

Health departments denied about 8 percent of the requests for restaurant inspections, while school districts refused to release superintendent contracts about 12 percent of the time.

County assessor’s offices were the only audited agencies that always released information.

There are many reasons why someone would want records similar to those requested in the audit. A group of residents might need information about area crimes so they can plan a neighborhood watch. Or so parents could keep children away from sex offenders by knowing what the offenders looked like and where they lived.

A restaurant inspection report might be valuable for a couple trying to decide where to plan a wedding reception or for diners trying to avoid a place with frequent health violations. Savvy home buyers can compare the values of nearby homes when negotiating a sale.

And having documents such as a school superintendent’s contract can allow people to watch what their local leaders are doing and spending.

"The bottom line is that people are entitled to pretty much any document that comes to my mind," state Attorney General Christine Gregoire said.

She said the state’s public disclosure laws were designed to make Washington’s government one of the most open in the nation, and she was disappointed by the audit’s findings that some agencies were not following them.

Withholding documents builds skepticism, Gregoire said, and makes people believe government is "hiding something." "When (citizens) are denied unjustly, they feel completely disenfranchised from government," she said. "They lose trust."

Gregoire said agencies should err on the side of full disclosure, meaning if they’re in doubt as to whether something should be released, they should release it.

But what often happens is that no one in the agency — or at least no one at the front office — knows anything about public disclosure laws, Gregoire said. Her office, and the state auditor’s office, have been trying to help teach local government officials how they should treat public records, but turnover in local agencies often brings in new employees unfamiliar with the law.

Not all officials were responsive when confronted about their agency’s denial. Some said they just didn’t have enough people or were too busy to comply with the law.

"I’m sure they’re understaffed," Gregoire said. "And it’s resource-intense and costly. I understand that. But you know what? That’s not an exemption in the law."

State law says that in releasing the information, agencies are not allowed to ask why the person making the request wants the records or how that person plans to use the information.

If parts of a document are exempt from disclosure, the agency may black out only the information that can be exempted. And for each piece of information withheld, the agency must cite the specific exemption of the law that was applied and explain how it was used.

The agency also must respond to each request within five working days.

In many cases, officials demanded a reason for wanting the records. Many requesters walked away after being told they had to be somehow involved in the crime to see the report.

That is simply not true, said Michele Earl-Hubbard, a media lawyer at Davis Wright Tremaine in Seattle.

"Crimes are things the public has the right and the need to know about … so people can protect themselves from becoming victims," she said.

Law enforcement officials can only withhold information that, if released, would "severely hamper" the investigation or violate a victim’s right to privacy in certain instances, she said.

State law allows for dozens of exemptions of certain records, including medical records, student performance records, adoption records, materials protected by attorney-client privilege and some commercial and financial information provided to public agencies.

Rowland Thompson, who lobbies Olympia legislators on behalf of media interests, said: "Our scuffles are not with elected officials; they’re with the bureaucracy. They’re the ones who get embarrassed, and they’re the ones who try to get this stuff closed."

Although media groups may make the most noise on behalf of public access, both Earl-Hubbard and Thompson said regular citizens also should be willing to stand up for their rights. If people want to see a record and are denied, they can sue. State law requires agencies that lose such lawsuits to pay all court costs plus a penalty ranging from $5 to $100 for each day the records were withheld.

"The public records law is only as strong as the requester wants to make it," Earl-Hubbard said. "If you go to the police department and make a public records request and the person turns you down and you leave, nothing is going to change and that agency is going to continue to do what it wants."

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