Legislative Alert: Efforts to weaken the Public Records Act
On January 26 lawmakers introduced two bills in the Washington state Legislature that would make it harder for the public and the press to fight for public records. The bills would tilt the balance of power in records disputes more to the government’s favor.
If passed as drafted, this legislation would make the state Public Records Act more burdensome for requesters. It would make state and local governments less transparent. It would hand the government a legal weapon that it could use to accuse requesters – in court – of harassment and “frivolous” purposes.
House Bill 1597 and companion Senate Bill 5571 would:
Give agencies more time to respond to requesters who appeal denied records requests. Agencies would have 10 business days instead of the current two businesses days.
Require agencies to establish an administrative process for records disputes. Requesters must complete all administrative appeals before they can sue.
Agencies must complete their administrative reviews within 20 business days. That’s essentially a month, given that two days of the week fall on a weekend.
Cut in half the statute of limitations for requesters to file a lawsuit. Requesters would have to sue within 180 days instead of one year.
Create a pathway for courts to award penalties not to the requester, but to an agency. The bills offer no criteria for judges to follow.
Require requesters who sue to sign a “certification” saying their records request was not submitted for “any improper purpose.”
Define an “improper purpose” as any records request that was submitted to harass, impose “an unreasonable or a frivolous” expense on the government, win a monetary award or for “any other frivolous purpose.”
The Public Records Act gives citizens and the press a way to find out what their government is doing and hold it accountable. Transparency is essential in a democratic republic, where the government answers to the people.
House Bill 1597 and Senate Bill 5571 are bad policy. Here’s why:
They would make requesters face more obstacles to resolve records disputes.
They impose a new process that takes more time, potentially depriving the public and the press of timely information.
They give the government more time to consider records appeals and requesters less time to take disputes to court.
They require plaintiffs to swear their request was not for “any improper purpose.” The phrase is an invitation for abuse. Public officials could accuse journalists and citizen activists of filing requests as harassment, or for a “frivolous purpose,” as a way to block the disclosure of embarrassing information.
The bills were largely introduced to curtail litigious requesters. But agencies already have tools at their disposal for dealing with “the serial litigant.”
Judges have discretion to award penalties and assign fees in records disputes. Agencies can make their case that penalties and fee shifts are unwarranted.
Judges can declare a records request frivolous and impose fines against a pro se requester or his or her attorney.
Agencies often respond to records disputes with aggressive litigation. It’s a costly approach for everyone. But agencies don’t have to double down for every records dispute. If they simply disclose the records in good faith, many problems go away and judges may look favorably on their actions.
Taxpayers have had to pay unnecessary fees and fines because officials have used weak and strained legal arguments to resist openness and accountability. WashCOG is working to change that behavior and to promote best practices for retaining and organizing records, making them more readily available and avoiding unnecessary costs.
A small number of requesters have filed a large number of lawsuits in recent years, ostensibly to make agencies comply with the Public Records Act. We understand their stated motivation, but theirs is not an approach we would take. With HB 1597 and SB 5571, legislators are trying to address a small number of requesters by making the Public Records Act less effective for everybody else.
The Legislature has a lamentable record of trying to circumvent state transparency laws so lawmakers can hide their work from the public.
Lawmakers in 2018 quickly passed a bill that would have exempted the state Legislature from the Public Records Act. The ensuing public outcry prompted Gov. Jay Inslee to veto the legislation.
In a historic ruling, the state Supreme Court in 2019 held that individual legislators are subject to the Public Records Act. The 7-2 opinion settled a long-running dispute between media outlets and lawmakers, who claimed the transparency law did not apply to them.
Last year the Legislature quietly began rejecting public records requests by citing “legislative privilege.” No established “legislative privilege” to withhold lawmakers’ records exists in Washington state.
This pattern of behavior is contrary to our form of government. A democratic republic relies on its citizens to oversee their agencies. Government weakens its overseers when it keeps them in the dark.
The preamble to the state Public Records Act is an eloquent restatement of this principle:
“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. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”
