The state open-records law is under siege

Here is a passage from a Washington law beloved by journalists and other public watchdogs:

“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”

That’s part of the state’s Public Records Act, the legal tool that makes it possible for reporters and regular citizens alike to poke our noses into places we often aren’t welcome. The act’s clear language leaves no room for government confusion.

We hold among our rights as Washingtonians the authority to read government emails, to scan the check registers at a city hall and to pore over the legal bills run up by school districts.

Since 1972, providing meaningful access to public records has been as essential a function of government as patching potholes or collecting taxes.

That could change.

The Legislature, spurred by tales of people using records requests to harass government officials, is considering changing state law to let bureaucrats and their lawyers step up resistance to releasing paperwork. SB 6351 would allow government officials to withhold records if they can convince a judge that kicking the materials loose would pose a “significant burden.” A Senate panel on Thursday moved the measure closer to becoming law.

Under existing state law, all of the public’s records are assumed subject to review except for some narrow exemptions, such as documents from active police investigations, maps of archaeological sites or your public library records.

Gold Bar’s mayor, Whatcom County’s prosecutor and others testified at a Jan. 31 hearing that some are twisting the records law simply to vex people in government, not gather information.

But Shankar Narayan, legislative director for the American Civil Liberties Union of Washington, said the proposed change is like using a sledgehammer to kill a mosquito. It’s poor policy, he said, to haul people into court and force them to prove that the public good is greater than the burden on government.

“Sometimes that is, in fact, the only way to be able to police agencies and serve the purpose of open government,” Narayan testified.

Our readers and the community have benefited greatly from “burdensome” records requests. They’ve helped expose leaky ferries, malfunctioning highway barriers and an off-the-rails red-light camera program, to name just a few. To be sure, good people in government helped us access those records. As often, though, we’ve encountered officials who, as documented in the attached email string with Snohomish County Executive Aaron Reardon’s spokesman, obstructed lawful access to records, then whined about our refusal to go away.

Lawmakers not long ago decided that governments can seek a judge’s help in swiftly resolving public-records disputes when the person seeking the records is behind bars. The rationale is that inmates surrender certain rights, said Rowland Thompson of Allied Daily Newspapers.

Now, legislators are considering similar treatment for us all, he said.

“In this instance we are talking about people who have done nothing wrong other than to ask for a public records request,” Thompson said.

UPDATE: The version of this bill that moved forward Thursday was tweaked to revise language that would give government agencies a new avenue for resisting public records requests by arguing they represent a “significant burden.” You can read the bill report for details. One public records expert we spoke with Friday said it is unclear whether the change eliminates the reason for worry. This one bears watching.

Public hearing on the Senate bill: