People who don’t regularly use Washington’s public records law often are in for a surprise when they approach area governments and demand access to information. Many, many honest people in government take the law seriously, and when th
ey do, it works to provide timely access to documents and data. But if an agency wants to resist disclosure, there is little recourse except an expensive trip to court. Despite the law’s soaring language about not leaving it to bureaucrats to decide what the rest of us get to know, RCW 42.56 is basically all bark.
If you are fighting a government agency that practices obstruction as performance art, Washington’s records law provides about as much back up as a black lab with a bandana for a collar.According to the Reporters Committee for Freedom of the Press, violating open records laws is a crime in Colorado, Wyoming, Louisiana, Maryland and some other states. In theory, at least, it can result in criminal sanctions, including time in the clink. Florida, Idaho and several other places allow civil penalties to be assessed against records scofflaws.
In Washington, an offender needs to engage in full-blown official misconduct — such as actively hiding or destroying records — before they likely will even risk criminal sanctions. The agency the offender works at can face penalties, but a judge first must be convinced such a step is warranted. Governments subject to the state’s records law also are supported by taxpayers. That means the community takes a hit, too, when the boots are put to a bureaucrat.
Washington’s records law now has even less bark left. Gov. Chris Gregoire on May 5 signed an amendment that sets public records penalties as low as $0 a day. To be fair, the minimum penalty before was a paltry $5 a day and those wronged still can seek up to $100 for every day a lawful request is obstructed. But the road to zero actually began with lawmakers considering increasing penalties to $500 a day. Instead, goose egg.
Civil lawyer Greg Overstreet, a former public records ombudsman at the state attorney general’s office, has all the details about what happened on his Open-Government Blog. As he points out, lawmakers in one legislative committee even hop-scotched past a public hearing to move the change ahead.
The $5 question: does anyone really believe the minimum public records penalty, which was far less per day than a parking ticket, scared wannabe lawbreakers? Thankfully, the malefactors aren’t the majority. A lot of good people in government do the right thing because that’s how they are wired. You can’t put a price tag on that.