Lawmakers seek solutions to public records request abuses

OLYMPIA — Tales of abuse of Washington’s public records law are piling up in cities, counties, schools and other local government around the state.

So, too, is the tab for taxpayers, compelling civic leaders to once again press lawmakers for help.

But like similar attempts the past few years, lawmakers are struggling to find that legislative sweet spot, where abusers of public records laws can be deterred without undermining Washington’s sacred doctrine of open government.

“There are solutions. The reasons we haven’t really attacked it is because it would be a really extreme thing to remedy the situation,” said Rep. Sherry Appleton, D-Poulsbo, chairwoman of the House Local Government Committee where the debate is playing out this session.

“Maybe in the future if we don’t find any relief for all of these massive requests we’ll have to repeal the Public Records Act and start all over again,” she said. “I am not proposing that. I don’t think that’s going to happen but I don’t see any other way to help them.”

Concern is bipartisan.

“It is no longer just about Gold Bar,” said House Minority Leader Dan Kristiansen, R-Snohomish, referring to the small town in his district that’s reported being nearly bankrupted by the cost of paying workers to respond to records requests.

“The problem’s been acknowledged by a much broader group than it’s ever been,” he said. “I don’t see a way to solving the whole problem. Can we start chipping away at it? The difficult part is trying to do it in such a way that you still have public access for people who really need it.”

This year’s attempt at reform is House Bill 2576, authored by Rep. Joan McBride, D-Kirkland, a former Kirkland City Council member. It has 15 co-sponsors, including Rep. Cindy Ryu, D-Shoreline.

Appleton conducted a hearing on it last month and the Local Government Committee could vote to pass it as early as Wednesday.

“This is a very modest bill and a good, elegant first step in dealing with that 1 percent of records requests that are harassing,” McBride testified at the Jan. 28 hearing.

It would let cities, counties and other local government bodies limit how much time its staff spends responding to public records requests each month, subject to certain conditions, including making more information about budgets and spending easily available for public inspection.

It also would allow governments to prioritize the handling of requests based on the volume of records sought and the number of requests the requestor has made in the preceding 12 months.

Supporters contend this provision would enable demands from serial requesters and data mining firms to be put behind those from individuals, noncommercial entities and the media. A government body would be required to conduct a public hearing on any proposed rules before adopting them.

The bill also would establish a new five-person Public Records Commission to help resolve disputes between those seeking documents and public agencies.

And it would allow higher fees to be collected from an individual or company that intends to sell or resell the information for profit. Existing law limits agencies to recouping only the cost of copying and providing the documents.

Rowland Thompson, executive director of Allied Daily Newspapers, and Toby Nixon, president of the Washington Coalition on Open Government oppose the bill as written.

“It is a grab bag of the good, the bad and the ugly,” Thompson said Tuesday. (The Daily Herald is a member of the organization.)

Finding a way to handle vexing requesters is good, he said. But the bad and ugly in the bill would enable requesters to be asked why they want the records. That could have a chilling effect on whistle-blowers, journalists and anyone wanting to keep their reasons and identity private, he said.

State law generally does not allow governments to pick and choose how to respond to individual records requesters. In 2011, legislators tweaked the law to impede the ability of inmates to collect fines in records cases and set up a means to enjoin people serving a criminal sentence from using records laws to harass or intimidate others.

“There is nothing in this bill that gets at the giant requests directly,” Nixon said, adding he thinks cities would like to see those prisoner provisions universally applied. He said the group’s legal committee is trying to craft different language for the bill.

This year’s debate on the Public Records Act comes after a few huge requests, including several whoppers from Tim Clemans, of Seattle.

Clemans sought millions of records from the University of Washington in January 2015 and then sought millions more from all state-level agencies the following month.

Both requests were denied because Clemans requests didn’t comport with the Public Records Act by seeking identifiable records as the law requires. Undeterred, Clemans made more headlines by filing similar requests at dozens of King County cities. He’s also made thousands of records requests in Seattle by “bot,” writing computer code to repeatedly submit demands for records.

Snohomish County has struggled with several big demands too, Sara Di Vittorio, a deputy prosecuting attorney told the legislative committee last month.

She talked about a request that sought all emails and documents generated by all county workers. It was estimated there would be 12 million records responsive to the request and it would take 56 years to fill it at a rate of 1,100 pages a day, she said.

Within four days the county spent $17,000 to rebuild an old server to store all the responsive documents. They prepared to spend another $83,000 for equipment to retain the material for all those years and roughly $5 million on staff to work solely on the request.

The person withdrew their request one week after submitting it, she said, but the county had already spent the $17,000.

Stories like these are why Rep. Terry Nealey, R-Dayton, one of the bill’s co-sponsors, said advocates for open government and the media should back the legislation now proposed.

“They should be on our side,” he said “This bill helps them. It attempts to fix the problem of not tying up local government so they don’t get caught in the long line behind what I call improper requests.”

The bill is heading in the right direction but not there yet, Nixon said.

“I think we’re making progress,” he said. “The more we work, the closer we get to something we’re willing to try.”

He and Thompson suggested a task force be formed to work on language in the interim.

Also, in August, the state Auditor’s Office is expected to release a report on how much money local governments spend fulfilling public records requests and how the nature and volume of records requests affects their operations.

“We need to do something,” Appleton said. “I just don’t know what the answer is. I don’t think anyone does. The only way to keep the conversation going is to keep the bill moving.”

Jerry Cornfield: 360-352-8623; jcornfield@heraldnet.com

This story has been modified to correct the spelling of the name of Sara Di Vittorio, a Snohomish County deputy prosecutor.

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