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Open records act under fire as large requests tax system

Lisa Anderson, a Public Disclosure Assistant in the Tacoma City Clerk’s office, works on a search of city records to fulfill a request in February.
Lisa Anderson, a Public Disclosure Assistant in the Tacoma City Clerk’s office, works on a search of city records to fulfill a request in February. phaley@thenewstribune.com

At 44 years old, the Public Records Act is firmly in midlife, and some legislators say the law is showing its age.

Much has changed, they say — and the Public Records Act must, too. Modern technology and communication methods require workers to create records constantly: emails, databases, even text messages.

Fielding requests for those records has become a burdensome task that never ends, legislators argue. Adjustments to the law would help struggling local governments address voluminous, vexing requests from so-called “serial filers,” without hindering transparency, they say.

Hogwash, open government advocates say. The people pay for the government with their tax dollars — including the shiny tech toys that were supposed to simplify and streamline the duties of record-keeping. The public’s right to know what the government is doing remains essential.

“Full access to information,” as the authors of the Act wrote, is a “fundamental and necessary precondition to the sound governance of a free society.”

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.

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Is the records act too old? No, say its backers. It’s flexible enough to meet the needs of governments and citizens, and new technology makes it easier to comply, not harder.

One need only look to the Kirkland city clerk’s office, which has managed to avoid lawsuits and satisfy requesters seeking anything from car crash reports to every document ever produced by city workers.

NEW BREED OF REQUESTERS

Had the latest proposal passed muster in the Legislature, local governments would have been allowed to ignore computer-generated requests for documents, put aside requests for “all agency records,” cap the amount of time workers respond to requests, and prioritize records requests based on complexity.

One of the bill’s co-sponsors, Republican Rep. Terry Nealey, said small cities in his Eastern Washington district lack the resources to cope with requests for massive stacks of records.

“A lot of these smaller entities don't even have a …full-time person,” he said. “They just plain do not have the personnel to respond to these large requests.”

Nealey also cited the need to curb “vengeful” requests from individuals with grudges against local agencies.

“It’s very important that we keep the Public Records Act intact and that we have full transparency,” he said. “We want to make sure that legitimate requesters continue to have the opportunity to obtain records.

“What we’re trying to do is narrow this bill down, to go after those requesters who are, in my opinion, not legit. The law is very legit, but it became law in ‘73, when probably the most modern piece of equipment in the office was an IBM Selectric. You can push a button on a computer now and instantly request a million records.”

Since the inception of the Public Records Act — nearly three-quarters of voters approved it in 1972 — legislators have introduced dozens of bills to limit access to documents, often at the behest of cities and counties who say the cost to comply with the state law is too high. Industry also has successfully lobbied the legislature for dozens of exemptions that they say protect their business interests.

But a new breed of requesters has governments on edge.

Self-taught computer programmer Tim Clemans last year filed requests for all Seattle Police Department dispatch calls, police reports and videos. He dropped his requests after the department hired him. There, he developed software for the department, including a program that blurs potentially sensitive police video. That worked — for about six months. Clemans resigned in frustration, using a computer program to file 200 records requests with the department within hours of his departure.

He also filed thousands of requests with governments statewide, including some to view “all” records.

He eventually withdrew his requests to nearly 40 agencies, saying the information he had already viewed was boring.

“I didn’t see anything that piqued my interest,” Clemans said in a recent interview.

While Clemans withdrew his requests out of boredom, agencies were still forced to spend time and energy responding to them. In some cases, those responses illustrated potential counters to massive requests. Last fall, the City of Seattle received more than 300 individual requests from Clemans in a six-week span. In December, the city responded to one Clemans request for “all” public records with a flat denial, saying the request did not seek “an indentifiable record.”

Clemans received a similar denial earlier in 2015 from State Attorney General Bob Ferguson’s office, which rejected a request that included about 600 million emails. The cited reason: Clemans hadn’t asked for an identifiable record.

A lobbyist with the Association of Washington Cities said the Public Records Act works best when requesters and governments work together to “be reasonable and identify specific records.”

“Our concern is there is not enough protection for those jurisdictions when you have requesters who don’t have those kind of good intentions,” said AWC lobbyist Candice Bock.

Our concern is there is not enough protection for those jurisdictions when you have requesters who don’t have those kind of good intentions.

Association of Washington Cities lobbyist Candice Bock

Clemans is one of a few examples Bock mentioned as those who vex cities with broad requests. Responding to such sweeping requests can bankrupt a small town, she said. Records clerks can make honest mistakes, but if a judge awards penalties for breaking the law, it takes away money from essential services that taxpayers expect.

“It’s those kind of requests that seem to be large enough that you are guaranteed to miss something,” Bock said. “And then they leave you open to potential liability.”

State law doesn’t say how much time or money agencies have to spend to reply to records requests, but the Act does require agencies to adopt “reasonable procedures … to prevent excessive interference with other essential functions of the agency.”

Such essential functions include fire protection and police officers, and those costs are carefully budgeted for, said Toby Nixon, a Kirkland city councilman and the president of the Washington Coalition for Open Government.

“Public records is an essential service, too. It doesn’t mean it gets a bottomless bucket of money,” Nixon said. Governments “are always talking about how responding to public records requests is a fluffy, unfunded mandate. It’s something they have to do and they barely tolerate it.”

A Washington State Auditor’s Office study on government costs of complying with the act could be released in December 2016. Last year the office sent more than 2,300 surveys to school boards, cities, port districts and more. Lewis said the money for the study came from the last legislative session. He said the study is a victory for small governments that struggle to comply with requests.

Public records is an essential service, too. It doesn’t mean it gets a bottomless bucket of money.

Toby Nixon, a Kirkland city councilman and the president of the

CLOSER LOOK: THURSTON COUNTY

The City of Olympia expects to field about 1,575 public records requests in 2016. The average request costs about $125 in staff time, leading to an estimated total expense of nearly $197,000.

That’s about 44 percent of the records management program’s annual expenses. The city devotes four full-time employees toward managing all records, including public records requests.

The workload extends to other city departments that assist in gathering records such as emails and permits. Other departments such as parks and public works have their own records coordinators.

The Olympia Police Department handles its own records requests and has its own records management program. Records requests will become more costly down the road when the department eventually begins using police-worn body cameras. Data storage alone is expected to cost $200 to $600 per officer per month, according to projections.

Requests that span multiple city departments are the most costly and time-consuming to produce. The city reports an average response time of 60 days for these particular requests, with an average cost of $305 in 2016. That estimation is based on the average city employee’s salary and benefits.

“All employees work on records requests to some degree,” said Amy Cleveland, senior personnel analyst and records manager.

In February 2016, about 53 percent of all requests were related to the Olympia Police Department, Cleveland said.

That same month, the Community Planning and Development department handled 30 percent of all requests, mostly for quick turnaround documents such as building permits, Cleveland said.

For a large records request, such as one that seeks “all records” on a particular topic, hundreds of thousands of documents may be involved. Staff will contact the requester for clarification, and oftentimes learn that the requester simply wanted permitting records instead of every single email associated with it, Cleveland said.

The average response time for a public records request is 16 days, according to the city.

In 2015, Olympia implemented a new email archiving system to lower the cost and boost the efficiency of responding to records requests. The new system allows for deletion of records that don’t need to be kept, such as a follow-up email in a chain of messages that simply says “please call me,” for example.

Thurston County received more than 900 public records requests in 2015, said Jane Futterman, deputy prosecuting attorney.

Futterman advises and educates county departments about public records requests. Each office and department has an assigned public records coordinator, but there is no county employee whose sole job is to fulfill records requests, she said.

She estimated the county devotes 4,000 to 5,000 employee hours every year toward responding to requests. That number is unofficial because not all departments track staff time related to records requests.

And while she can’t recall a particular request that truly strained the county’s resources, Futterman said staff are diligent about finding what the requester is looking for.

“Most people, if they truly want some records, they’re willing to have a conversation to focus on the specific records they’re seeking,” Futterman said.

In smaller cities such as Tumwater, the city clerk manages the requests. The responsibility to procure the records, however, is absorbed by the staff. The police department handles its own records, and the city does not devote funding specifically toward records requests, said assistant city administrator Heidi Behrends Cerniway.

Tumwater averaged about 132 requests a year in 2014 and 2015, according to the city’s log of public disclosure requests. Some of the more common requests include fire incident reports, site plans, building permits, hazardous materials reports and inspection records.

In July 2014, a requester asked for all emails between Jan. 1, 2010, and July 24, 2014, for seven Tumwater City Council members. The request was delivered over five installments and was completed Feb. 25, 2015 — almost seven months later.

One of the state’s best known public records gadflies is Olympia resident Arthur West. For nearly 20 years, he has been a thorn in the side of government agencies all over the state in the name of the Public Records Act.

He recently claimed a pair of high-profile legal victories. In 2014, West won a settlement worth $187,300 against the Port of Olympia, which he had accused of violating the Public Records Act for withholding documents related to lease negotiations, whistleblower complaints and an environmental assessment.

In 2015, he won a $192,000 settlement against the Washington Liquor Control Board, which he accused of violating the state’s open meetings laws and withholding public records while hashing out rules for legal marijuana. As part of the settlement, he agreed to withdraw all of his records requests and refrain from filing any future requests.

West said most agencies follow the Public Records Act, and he only takes on cases where he feels an agency has deliberately violated the act by withholding records. He also said judges consider public records issues more seriously than they did 20 years ago, and that agencies are much better at complying.

Although he hasn’t won every public records case, when he does win, West prefers to win the easy way.

“The ones I’m proudest of are the ones where I don’t have to go to court,” he said of his requests. “The act works when someone asks for records and they get them.”

CONTEXT IN KIRKLAND

The city of Kirkland, in King County, provides a case study of how a medium-sized city can learn to handle even large-volume records requests.

In recent years, records requests have become more complex, said Kirkland City Clerk Kathi Anderson, who is the vice president of the Washington Association for Public Records Officers.

While she said large records requests in Kirkland do not delay the response to a smaller one, Kathi Anderson said she understands how smaller cities could struggle. For example, a small city might have one clerk who takes payments for utility bills, issues building permits and fields records requests.

“To fit in a voluminous records request (with their other duties), that can be a challenge,” Kathi Anderson said.

In Kirkland, requests are categorized based on five levels of complexity. Generally, the city’s policy requires responses in chronological order, but the categories can affect the timing of responses. The policy does not set an ironclad sequence of responses; instead, decisions are made case by case. Requests that require many people across departments to search for records might earn a category three or four. A request for a specific email might be placed in category two. Category one is for requests where swift response can impact public safety.

And then there are category 5 requests, like the four Clemans filed.

“When we get requests now for every record the city has, that’s a completely different animal,” Kathi Anderson said.

Kirkland processes complex request in batches — a measure allowed in the current records act. Often a staffer calls the requester to see if he or she really wants all records. For instance, when Clemans asked to inspect “all of Kirkland’s public records,” the city called him.

Kirkland’s approach also says disclosure may be delayed if it involves records held by employees whose primary duties don’t include responding to requests.

We really love it and we hope our customers do, too.

Kirkland City Clerk Kathi Anderson on the city’s method for responding to records requests

“We used the Public Records Act to clarify what he meant and we proceeded from there,” Anderson said. “And of course, Mr. Clemans had priorities that he wished us to produce (records) in a specific order.”

Anderson said Clemans later dropped his requests.

But Bock said there’s a problem with Kirkland’s approach to prioritizing records requests based on their complexity because it has not been tested in court or approved by the Legislature. The same is true, she said, of Attorney General Ferguson’s tactic of denying a request for “all records” because a specific record was not identified.

So far though, Kathi Anderson said her office has had no complaints and she can’t imagine abandoning the new system.

“We really love it and we hope our customers do, too,” Kathi Anderson said.

Staff writer Sean Robinson contributed to this report.

Kate Martin: 253-597-8542, @KateReports

Andy Hobbs: 360-704-6869, @andyhobbs

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