The Olympia Report
by Jeff Rhodes
Posted 1/15/2013
State and local governments continue to struggle with the need to balance transparency against the increasing costs of records requests, and according to authorities testifying Tuesday on both sides of the issue, there’s no easy answer.
“It isn’t simply that the number of records requests we’re getting these days is mind-boggling,” Brian Enslow, senior policy director at the Washington Association of Counties told the House Government Operations and Elections Committee in Olympia. “It’s that the number of records being generated is even more mind-boggling.”
He said over-burdened records-keepers are simply unable to keep up with the volume of requests and local governments are rapidly approaching the breaking point.
That view was shared by Roland Thompson, executive director of Allied Daily Newspapers of Washington, whose reporters depend on prompt access to public records in order to effectively cover government.
“When (Washington’s) Open Government Act was passed in 1972,” he noted, “probably 90 percent of the records requests being handled by government were from newspapers. Today, only a small percentage come from newspapers — even though the raw number probably hasn’t changed that much.”
What has changed, Thompson explained, is the advent of the Internet and the culture of entitlement it fosters.
“These days,” he said, “you have more people watching public meetings because they don’t have to attend in person — they can watch online. And when they see something that interests them, they know they can request all the records on that subject. And just as the Internet is free, they expect the information they request to be free.”
By law, any governmental act or communication is a matter of public record and individuals are entitled to demand access to records of those actions. In the old days, however, that simply meant walking to a filing cabinet and finding a carbon copy of a written record — assuming there was one.
With the advent of e-mails, social media and video communications, however, there are vastly more records being generated today, and the cost to retrieve a specific nugget of information has increased accordingly.
Governments are permitted to charge for records requests, but only for the physical cost of the paper used to print copy the document in question. They cannot charge for the time and effort of the employee who finds the record or screens it to determine whether it contains personal information that may be redacted.
“In this day and age, that’s no impediment to the requester at all,” Thompson told the committee. “Very few people want the information in hard copy anyway. They want you to e-mail it to them, which they know can be done for free.”
Even so, that’s only half the problem. In addition to filling requests from citizens anxious to ferret out official wrongdoing, local filing clerks must also contend with companies that request records such as building permits and then re-sell that information to their clients.
More troubling, however, is the recent rise in nuisance records requests from individuals with an axe to grind against a city, county or individual agency. A property owner denied a variance or building permit, for example, can hold the Planning Department hostage by submitting a barrage of meaningless records requests costing the agency thousands of dollars in processing costs until the decision is changed.
A lawyer, likewise, can tie a prosecutor’s office in knots and delay action on his client’s case by requesting thousands of e-mails and documents that have little or no bearing.
“Every municipality has horror stories about someone who abuses the Public Records Act to achieve some goal that has nothing to do with why the law was enacted to begin with,” said Thurston County Prosecuting Attorney John Tunheim. “By that I mean someone who bears ill will against a particular agency and has a conscious desire to over-burden it.”
One inmate currently in Thurston County Jail has personally submitted hundreds of records requests, he said, requiring thousands of hours of manpower to comply. Even worse, “This individual has become something of a jailhouse lawyer, and he’s encouraging other inmates to use the same tactic.”
Tunheim said the only recourse his office has is to seek an injunction against the individual or agency filing what it believes is a request whose only purpose is to harass the system. Unfortunately, it’s nearly impossible to distinguish a legitimate records request from a frivolous one.
And with good reason.
“The intent of the law was that the least among us should be able to challenge even the most powerful,” Thompson said. “The state could put restrictions on the process to prevent it from being abused, but you shouldn’t be in the position of deciding whose request is worth honoring and which records are worth sharing. That defeats the whole purpose of the law and creates the potential for abuse by the government — which in some ways would be even worse.”
Rep. Gary Alexander asked whether there was a way to craft legislation that targeted abusers of the system while leaving in place the fundamental safeguards the law was designed to protect, but Thompson said he couldn’t think of any.
“The best suggestion I can come up with is to find a way to limit the amount of accessible records public officials create,” he said. “It costs nothing to write an e-mail, send a text, post something to Facebook or tweet it to Twitter, but all of those communications are potentially subject to records requests.
“If you control the information input,” Thompson said, “you can control the cost of the output. It puts you in a quandary, I know, but if I were a county executive, for example, I think about the only thing I could do would be to put up posters like they used to have during World War II saying that ‘Loose Lips Sink Ships.’ ”