Public Agencies Declare War on Washington's Public Records Act

by Judith A. Endejan

January 24, 2013

This month, irrespective of whether there might be a factual basis for public agencies' grumbling about the Public Records Act, the Washington Legislature introduced House Bill 1128 that could effectively gut a citizen's ability to obtain public records.

It is an understatement to say that public agencies dislike Public Records Act (PRA) requests submitted by citizens under RCW 42.56. More and more agencies like to point to "abuses" of the PRA, such as those by prison inmate Allan Parmelee or by a Gold Bar attorney who submitted PRA requests allegedly forcing the City of Gold Bar to the brink of bankruptcy. In fact, the Washington Legislature dealt with Mr. Parmelee's situation by adopting RCW 42.56.565, which allows agencies to enjoin releasing public records to persons serving criminal sentences like Mr. Parmelee. With respect to the Gold Bar situation, the Seattle Weekly recently published the back story to the dispute that places PRA "abuse" in perspective, because of the Peyton-Place-like nature of Gold Bar's government. Click here for the Seattle Weekly article.

So, how would House Bill 1128 affect the ability to obtain public records? First, the bill would allow an agency to sue a requester to get an injunction against the disclosure of the requested records on a pretty minimal showing that puts the public agency in the catbird seat. To get such an injunction, the agency would only have to show in written filings that the request is made to "harass or intimidate" or was made in "retaliation or to punish the local agency," or that it "creates an undue burden on the local agency." None of these criteria are defined in the bill and it is anyone's guess as to how they will be interpreted.

More troubling, the bill allows agencies to adopt a policy limiting the number of hours devoted to responding to PRA requests. It establishes "priorities" for responses and creates other roadblocks to responses to PRA requests. If an agency establishes such a policy or rule, this bill establishes a presumption that an agency is "reasonable" [to wit–not in violation of the PRA] if it spends one percent of its annual budget on PRA functions. This means that an agency could spend one percent of its budget on PRA request responses within the first month of a budget year and effectively ignore PRA requests for the rest of the year, or find some other reason to deny a request based upon its "schedule" or burdensomeness.

This proposed legislation ignores the fact that agencies have the ability to bring an injunction under existing law that imposes a higher burden to prevent the release of public records. That law (RCW 42.56.540) allows an agency to ask a superior court to prevent the release of public records if the court finds "that such examination would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions."

Further, this proposed bill directly contradicts an existing law (RCW 42.56.100) that requires agencies to provide the "fullest assistance" to requesters. The Washington Supreme Court has declared that costs and disruption to the agency are "of insignificant impact compared with the stated purpose of the Act." First Corp. v. Hoppe, 90 Wn.2d 123, 132, 580 P.2d 246 (1978). The Court has recognized many times that the PRA is "a strongly worded mandate for broad disclosure of public records." Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 408, 259 P.3d 190 (2011).

While there may certainly be some "bad boy" PRA requesters out there, if House Bill1128 is enacted the PRA will effectively be devitalized and citizens' rights to access public records for public accountability will be eroded.

House Bill 1128 is not the only PRA-related bill that agencies would like passed. They want the legislature to require public record requesters who submit requests "for commercial purposes" to pay for agencies' costs for the production of those records (House Bill1037). What constitutes a commercial purpose is not clearly defined, however. In another bill (House Bill 1019) agencies would require persons making PRA requests to identify themselves or disclose the identity of the person on whose behalf the request is being made. This means that an attorney acting on behalf of a client would be forced to disclose the identity of his or her client.

Public agencies have become agitated over the perceived (as opposed to real) problems caused by responding to PRA requests. Existing law already allows agencies to minimize the disruption and/or harm to their operations. The legislature does not need to add new loopholes that allow agencies to escape the responsibilities that they owe to their citizens. If you have any interest in obtaining public records, now is the time to contact your state legislator to stand up for your rights and let them know that you oppose these bills.

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