OLYMPIA – In a state that prides itself on its public access laws, advocates for open government are increasingly concerned about the growing practice of slipping exemptions quietly into new laws, a practice that is gradually eroding the public’s right to some records.
To date, there are at least 300 exemptions to Washington’s sweeping public records law, which generally holds that records should be open. Off-limits records range from documents dealing with prevention or response to terrorism that would create “a substantial likelihood of threatening public safety” if released to personal information such as credit card numbers.
| Exemptions
Some of the information exempt from public disclosure: * Records dealing with the prevention or response to criminal terrorist acts, where the disclosure would create “a substantial likelihood of threatening public safety.” * Disclosure of HIV testing or treatment of sexually transmitted diseases. * Trade secrets. * Test questions and answers. * Residential addresses, telephone numbers, birthdays or Social Security numbers of any law enforcement, corrections officer or court employee. * Credit reports. * Purchases, sales or production of an individual ginseng grower or dealer. Source: Washington statutes |
But then there are also proprietary exemptions, like one for ginseng enacted in 1996, that seem out of place.
The exemption was tucked into a bill with the innocuous title, “An act relating to the department of agriculture grants of rule-making authority.”
The bill was adding a few items to the list of things the Washington State Department of Agriculture could regulate, but included the public records exemption for ginseng dealers.
“How does an exemption for ginseng end up in” state law? Republican Attorney General Rob McKenna asked. “That’s how the act erodes over time, with narrowly crafted exemptions that escape notice because they’re tucked into a larger bill.”
Exemptions are scattered throughout the statutes, something Rep. Toby Nixon, R-Kirkland, would like changed. Nixon introduced a bill this year that would have required all exemptions to be located in one place in the statutes. His proposal died in committee. Last year, Nixon successfully pushed through a bill reorganizing 60 public record disclosure statutes into a new chapter called the Public Records Act, with exemptions listed by subject.
But Nixon said consolidating all the exemptions in one place is an important goal, and one he would continue to pursue.
“It makes it easier to find if there is one and it makes it easier to identify if someone is trying to create a new one,” Nixon said.
Voters enacted the public records law with the overwhelming passage of Initiative 276 in 1972. The measure called for disclosure of campaign finances, lobbyist activity, financial affairs of elective officers and candidates, and access to public records. When it passed, there were only 10 exemptions to the public records section.
Since then, hundreds of exemptions have been introduced. Some have been introduced as separate bills, like one measure that failed last year that would have denied jail and state prison inmates access to all public records.
But most have been tucked into other bills.
“It’s a normal legislative tactic, hide something in a big bill,” said Michelle Earl-Hubbard, president of the Washington Coalition for Open Government. “The remedy they propose is always blanket denials – cut off access to an agency or record as opposed to figuring out how to deal with a specific problem they don’t like.”
For example, Gov. Chris Gregoire’s Life Sciences Discovery Fund – which encourages medical and agricultural research in Washington state and became law last year – exempts grant application information on the basis that the research information could be obtained by competitors.
The down side is that the decisions about who gets the taxpayers’ money will be made with little chance for the public to decide whether the recipients are worthy.
“It’s the direct giving of government money in a closed setting,” said Rowland Thompson, executive director of Allied Daily Newspapers, a trade organization for newspapers in the state. “That board will be acting on information the public can’t see.”
McKenna, who has made open government one of his top issues, said he would like to see lawmakers review the hundreds of exemptions to see if they are still needed.
“My philosophy about exemptions is they should be narrowly tailored to cases where there is another important public interest that would be compromised if public interest of disclosure was upheld,” McKenna said. “Most exemptions that are proposed can be justified as protecting someone’s interest. But lawmakers need to weigh that against the greater public’s interest.”
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