Parker Stoops talks about how to gather public information

Howdy!

My name is Parker Stoops, and I am a two-bit citizen activist in a tiny village no one has ever heard of in a rural county that spans the far upper left corner of Washington state. Bob and Sue Forde are my friends, and somehow they have gotten this idea in their heads that I’m doing something interesting, and you’d like to hear about it. When Sue asked me to compile a brief summary of my activities regarding public disclosure, like a crazy fool I said, "Okay, on the condition I can start with a disclaimer." Here it is:

 If you are an official, agent, or other minion of some government agency, don’t read this. Turn around now, while you can still save your blood pressure, ‘cause this ain’t goin’ where you’re goin’, and you’re gonna hate it when we get there.

If you are an extreme environmentalist, or a subspecies of liberal who wants the coercive power of government to force your values on the common folk, GIT!! Get thee behind me. You and I hate each other already, there’s no chance of us ever getting along, and reading this is just gonna make you mad. There’s nothing here for you.

If you are a pessimist who thinks that government is so big and solid that no ordinary person could ever budge it, you may read this for entertainment purposes, but in the long run it’ll be a waste of your time.

However - if you believe in the Constitution and the Bill of Rights, if you value freedom for yourself and your children, if you think that citizens can and should make their own decisions about guns, private property, and taxes, while respecting the rights of others, then you’re my kind of people. Come on, let’s kick some butt!

I’m nobody special, just an average Joe who refuses to be intimidated by bureaucrats. I’ve felt the frustration of seeing agencies enact and enforce unfair laws, and then add insult to injury by breaking the law themselves when it suits their purposes. That is wrong. Public officials are sworn to uphold the law, but instead many of them have made a career out of using the laws to impress their own twisted values upon society.

Unfortunately, many people feel helpless when some arrogant functionary tells them, "You can’t subdivide your land" or "You have to plant a 300-foot buffer zone." Sometimes they give up. Sometimes they tell all their neighbors, and then give up. Sometimes they scrape together enough money to hire an attorney who bleeds them dry, and then they give up. I’m here to tell you, you don’t have to give up. A citizen can’t do everything, but he can do a lot more than most people think.

Tip #1: Next time a county employee tells you a regulation, ask them for the specific statute, c ode, or policy where the rule in question may be found, and when it was enacted into law. Ask them to give you a copy of it, or put their decision in writing.

It takes work, sometimes hard work. Maybe it means going to a meeting and testifying when you’d rather see a movie. I’ve spent some evenings studying a particular code or ordinance when I deserved to be reading a western novel instead. But if we believe that public servants should work for the public, we need to make them toe the line. We cannot afford the luxury of letting them go on unchallenged.

One essential aspect of accountability is that the citizens must be able to find out what their government is doing. Without this element, ordinary people are at a severe disadvantage when dealing with a governing body that lies, denies, and confuses the issue. That is why I hope you will agree with me that public disclosure is a vital issue, and one that is not always used to its fullest extent by citizens.

One tool at our disposal is RCW 42.17, the Washington Public Disclosure Act. Passed as Initiative 276 in the early 70’s, it defines the operating, archival, and administrative documents of any entity partially or entirely funded by the state or its political subdivisions as public records, and requires agencies to present them to citizens upon request. This law is biased in favor of the citizen, if he knows how to use it.

Apparently the authors realized that an individual is often intimidated when he faces the monolithic power of a government agency, and they framed the Act in such a way as to level the playing field somewhat. Of course, agency personnel will deny this, because they want to discourage you from exercising your rights, but if you know the law and they do not, you’ll have the opportunity to enlighten them.

Tip #2: Contact the Public Disclosure Commission at 1-877-601-2828 and request a copy of RCW 42.17, the Washington Public Disclosure Act. This is also on their website at www.pdc.wa.gov  and while you’re there, download the WAC-390 files which are the administrative rules about the public disclosure process. Then, contact the Attorney General’s office at 1-800-551-4636 and request a copy of their pamphlet, Obtaining Public Records. Also, visit their website at www.wa.gov/ and while you're there, go and download the Open Meetings and Records Deskbook, which contains many explanations and case law studies of public disclosure topics.

Some records are exempt from disclosure. For example, the Sheriff’s Department is not required to release information about a criminal investigation in progress (however, when an arrest is made and charges are filed, that becomes public record, and the judicial hearings are "public meetings" that citizens can attend). For the most part, the courts have ruled that where agency actions are concerned, disclosure is the rule and the exemptions should be narrowly applied, and only in cases where absolutely necessary to protect the innocent, etc. In any case, citizen activists are almost always seeking records of official acts which there is no good reason not to disclose.

Before you make your request, study sections 260(7), 300 and 320. 260(7) and 300 spell out what they can charge for, and 320 requires them to respond within 5 business days.

Tip #3: Put your request in writing, and make it as specific as possible. Hand deliver it if you can, or send it registered mail, because you don’t want it to be sucked up by aliens and disappear. Include this sentence at the bottom - "Since it is likely that the requested documents will be quite numerous, I ask that you locate and compile the documents without copying them. Please notify me by telephone and I will travel to review them in your office, and at that time I can copy the ones that seem relevant." Otherwise an obstructive staff member will charge you up the ying-yang to be buried in an avalanche of irrelevant papers.

In many agencies, their public disclosure performance sucks. Not only are their records in disarray, not only does their staff have an obstructive attitude, but they are unfamiliar with the requirements of RCW 42.17, and they are making up the rules as they go. They stall, they charge exorbitant fees, they will even quote some obscure paragraph out of their employee manual and try to say it has the authority of law. If you persist, they will threaten you, "explain" to you, "reason" with you, plead with you, and bump you up the administrative ladder, where the threatening, explaining, etc. will start all over again. Expect this, and welcome it as a sign that you are causing them some grief. Politely and firmly insist on your right to inspect their records, and your persistence will pay off. Either they will give you the documents you’re after, deny that they exist, or deny your request.

Tip #4

(a): They give you the documents. Good! As soon as possible, while it’s still fresh in your mind, go through what they gave you and make a list of additional documents that you want, either because they’re mentioned in there or you think they should be. First thing tomorrow morning, go in and hit them with another request, if possible presenting it to the same staff member who filled the original one. You have a window of opportunity here, and you want to strike while the iron is hot.

(b): They deny that the document exists. Get this in writing, because you can use it. If the record truly doesn’t exist, and you think it should, stand up in a public meeting of the governing body and ask why the agency has been so remiss as not to compile such a crucial piece of information. Chances are, though, the record does exist but the agency is concealing it by calling it something else or filing it in an unusual location. RCW 42.17.260 requires them to index all their public documents (which very few agencies have done), and you can hammer on this as a violation that is obstructive to disclosure. If the agency does have an index (surprise, surprise) and it is reasonably complete (no way!), the world is your oyster. Get a copy of that sucker and start requesting things you didn’t even know they had.

(c): They deny your request. Cool! Actually, this happens a lot less than you would expect, mostly because they have to state the specific exemption that justifies the denial, and usually they can’t find it. If they do state an exemption, look it up. More than once an agency has tried to use an exemption that didn’t really apply, or stretch an exemption to cover more than it really does. In any case, study up on sections 325 and 340, and decide if you’ve got a basis for legal action.

Understand how the bureaucratic mind works - they are not quick thinkers, and they value the predictability of routine. When faced with a challenge, they want to bluff and bluster, pass the buck, hide behind their legal counsel - anything to avoid debating the particular topic on its merits, because that represents a huge risk to them. Most of the time, it has been so long since they were taken to task that it is fairly easy to put them on the defensive, but it can be difficult to motivate them to action. Prepare to spend some time and effort schooling them up in the way they should go, and after they find out you’re serious, they will not depart from it.

Now let’s get down to the nuts and bolts of this thing. I have been researching public disclosure for quite a while, and I have found some ways to bypass or overcome most obstructive behaviors. I haven’t always been 100% successful on the first try, but I can eventually get what I’m after, and usually back down a few obstructers in the process. While that’s good for me, it doesn’t help you, or any other citizen seeking information, as the obstructers will walk all over you if they think you’ll stand for it. Here’s what I’ve been doing about it in Clallam county, where we have one good commissioner, one bad one, and one who could go either way, depending on how he’s influenced.

On the "supply" side, I have enlisted the aid of  the good one, and I am increasing the pressure on the middle one, to enact policies that encourage citizen access and discourage agency obstruction. Frankly, we can write off the bad one’s cooperation in this regard, because he and his pet department perceive that they have more to lose than to gain by public disclosure, and also because he is not facing reelection for quite a while. I predict he will continue to give lip service to the subject, but won’t lift a finger to accomplish it. When I testified these violations into the public record for the first time, he said, "Well, it looks like you’ve found some holes in the system." Dude! You don’t have a freaking system, and furthermore, you didn’t even know that one was required! Fortunately, we don’t need his support if the other two can be convinced to act together.

As far as "demand" is concerned, I want to see a big increase in the number of citizens requesting records from county agencies. This could make departmental staff quite agreeable to improving their request handling procedures, because if they continue their present inefficient methods, the sheer volume would bury them (but then, they’re already overworked and underpaid, right? Ha, ha). Here are some more things I’ve asked my supporters to do, and you may find these methods useful with your own pet agencies:

1. Visit the county website at www.clallam.net, and ask yourself why the meeting minutes, departmental organization charts, and summaries of pending and recent agency actions are nowhere to be found. Better yet, ask your commissioner.

2. Discuss with your friends, relatives, and neighbors (who are all registered voters, right?) the benefits of forcing all county departments to conduct their business openly and honestly, with nothing to hide from the taxpayers.

3. When you talk to someone who has been screwed by a county department, ask them if they are mad enough to do something about it.

4. Attend a public meeting of a county board or department, and then obtain the minutes so you can see if they accurately reflect what happened there. Write a letter to the editor of your local paper describing what you found.

5. Contact others in your area who are championing conservative causes. You can compare notes and find out what has and hasn’t worked for those who have already done it.

6. Make up your mind right now that bureaucrats are wrong to oppose the citizens’ interests, and we refuse to take it lying down.

Here are some specific violations of chapter 17, which your agencies have probably committed. The problem you’ll likely face is not trapping them in a violation, but finding so many you won’t know where to start.

1. Failure to publish procedures as required by RCW 42.17.250(1).

2. Failure to list exemption(s) as required by RCW 42.17.260(2).

3. Failure to publish and maintain a current index as required by RCW 42.17.260(3), or issue a formal order and present internal indexes as provided in RCW 42.17.260(4).

4. Failure to publish and display a statement of fees as required by RCW 42.17.260(7).

5. Charging fees to the public in excess of those authorized by subsection 260(7), in violation of the second sentence of subsection 300 (No fee shall be charged for locating public documents). This violation is particularly serious in light of RCW 36.18.160, which reads in part," If any officer takes more or greater fees than are allowed by law he shall be subject to prosecution, and on conviction, shall be removed from office and fined in a sum not exceeding one thousand dollars."

In all fairness, I must admit that in certain departments, although they fall short of absolute compliance with the letter of the law, the staff is quite helpful, and willing to release any public record documents in their possession upon request. Needless to say, with these departments and their staff I am ordinarily much less confrontational. Unfortunately, in other departments, certain staff are not as forthcoming, and display a variety of obstructive behaviors to avoid disclosure. Some of these behaviors are momentarily successful and some are not, especially to a determined citizen activist who knows his rights.

Common obstructive behaviors (and what you can do about them without going to court)  

denial of existence - get denial in writing, then locate doc yourself (requires an inside friend), make them produce their internal index and find it in there, find an example of previous agency use, question how could the function in question happen without doc (if no doc, where do you derive the authority to perform function), confront the likely source or author of the doc and ask what happened to it (believe it or not, he’s probably proud of it)  

excessive fees - limiting clause in PD request (something like, "I believe that the disclosure of the above information will benefit the public interest and am therefore asking that you waive any fees which arise from the copying of the requested materials.  If copy costs exceed $5.00 please inform me and I will arrange to receive the material by fax or travel to review it in your office." That way, if they try to run up fees on you, you can refuse to pay the overage), insist they itemize charges, cite s.300. Don’t pay any fees for research or locating documents, because s. 260(7) and 300 only allow them to charge the direct costs of copying, mailing etc.  

have to consult legal counsel - "okay, but get it in writing, because that becomes public record too, s.260(3)b,c" Most counsels (in our case the deputy prosecutor) would rather have a root canal without Novocaine than issue a written opinion about public disclosure.  

excessive delay - reduce request, cite s.290 "most timely possible action", s.320 requires them to respond within 5 business days

all - ask question "do you deny that state PD statutes apply to your agency? Reply in writing."

Don’t charge off after all the varmints at once, and don’t be nasty unless you have to, but concentrate your efforts where you think they’ll be most effective. Be assured, there are more and more people thinking this way, and if enough of us each take a chip off our favorite department, pretty soon they’ll be nothing but a pile of chips. Help your friends, hurt your enemies, and don’t move against somebody until you’ve got about 10 times the horsepower you think you’ll need to bury them. Once you open the gate, don’t stop plowing ‘til you’re back at the barn.

I wish I could tell you that success is just a formula thing, that if we add a and b and c together in the right order, no public official will obstruct a citizen ever again. As much as I’d like to believe it myself, it’s just not true. There are no guarantees, just smart and foolish ways to apply our time and resources. Full disclosure may not solve every single problem that our government faces, but it would certainly be a big step in the right direction. I’m going after it, and I hope you will too.

Remember, it is only what we are entitled to by law.

Speaking only for himself,

K. Parker Stoops

"Fighting crime by prohibiting guns is like trying to save trees by breaking axe handles."