Editor's note: Longtime Assistant City Attorney Bob Beaumier takes issue with last Sunday's Spin Control column regarding proposed changes to the law on certain public records requests. While I don't agree with some of his conclusions (just as he disagrees with mine) Spin Control is happy to provide his perspective on the issue in hopes of sparking public dialogue on what we both agree is a public matter.
Here's Beaumier's take on the issue:
For 32 years I worked as an assistant city attorney, until I was laid off last month and am now officially “retired”…or is it “unemployed”?
I’m still trying to figure that one out . The point is that I have a certain perspective on Jim Camden’s Spin Control. The topic of his column was proposals supported by Rob McKenna, our stalwart Attorney General, to limit sanctions for public records act abuses by prison inmates.To be fair, Camden makes some effort to acknowledge McKenna’s research that 3/4ths of all public records requests are by prison inmates, seeking to make a buck (and their attorneys seeking to make a buck).
This is because the public records act is a “sudden death” proposal.
If a government agency guesses wrong that a sensitive document is not a public record, it must pay mandatory daily penalties and attorneys fees to a successful litigant. These penalties do not quit as the litigation process grinds on (why is that?), so if a case does go to court and a government loses, the price tag can be horrendous. And the risk is one way only—if the government wins, it gets no penalties or attorneys fees from a party suing. I mention this to explain that a prison inmate or anyone else suing and their attorney have nothing to lose but their own time in bringing a challenge.
I recall hearing about one case not involving prison inmates where someone was mad about a parking ticket, so began flooding the issuing government with public records requests. I did not handle this case myself, but the story goes that when the ticket would not be dismissed, the person reportedly advised “well then, I guess I’ll have to send more big fat public records requests”. There’s no limit and no penalty for how many requests you send in or how ridiculous the request is. (You could ask for all records with the letter "t" between
1896 to present.)
So here are a few points Camden skips over folks:
1) public money is PUBLIC MONEY. It’s not the government’s money. It’s mandatory compulsory tax money, collected and intended to be spent to serve the public interest. You know, like schools and roads and public safety protection.. So when those huge penalties and attorney’s fees are awarded (they are mandatory per day and court discretion is limited as to the amount per day), it’s your money that’s being wasted. If you think government officials don’t understand this, you’re dead wrong.
2) It’s not as simple as Mr. Camden would blithely assume and pawn off to you as to what IS a public record. That’s why we have 5-4 State Supreme Court decisions on these issues. Wanna roll the dice?
The point here is that state law is extremely broad to support disclosure of a given piece of information. Exceptions to disclosure are to be construed strictly and narrowly. The unspoken assumption that government attorneys and officials think “Let’s see, how can I keep this secret?” is dead wrong. For 32 years, I worked as a “guest” in a public office. None of the resources I ever used were mine. They belonged to the public. My job was always to serve you, the folks that paid my salary and now pay my pension. That is how I think. I do not believe my view was atypical.
But suppose you had a lawsuit against your neighbor and you had certain files and records that showed weaknesses in your case. Unless you can establish some narrow exception applies, if you are a government agency, those records are all “public records” because of how broadly the law is written. Now some of these records might be required to be shared anyway because of the rules of legal discovery in a lawsuit and some are protected---but in other cases, the public records law jumps in and may require them to be disclosed simply because you are a public agency. But the other side has no such obligation. Is that a fair balance of disclosure? Should a government go into a case wondering if its information must be laid out to its opponent, but not necessarily the reverse? Remember, it’s your money on the line.
All this said, the truth is that the public should have a right to know about its government. That is a good thing. But it is not so simplistic as Camden suggests in how he writes his article. Ask yourself when you read the media reviews of these issues: are they really looking out for my money? Are they giving me a balanced story?
Camden makes some effort here, but not in all respects.
Here are a few other strange things to think about 1) the Courts and Legislature EXEMPT THEMSELVES from the public records laws. I wonder why that is? Could it be there is a recognition in some cases that the law goes too far? 2) The Media has a privilege (can’t touch it because it is protected by the US Constitution First Amendment) to any hide information it wants. I'm not suggesting this be changed, but the point is, the media can print whatever it chooses and there is no obligation to disclose sources or balance a story in some cases but the media’s own ethical standards. In many cases but not all cases in my view, we are lucky that our local paper tries to do this. Camden’s column does it in acknowledging several points. But in some areas he distorts things in my opinion.
Instead of him tossing off simplistic bromides like “it’s your government” and “public records are your records”, he should mention one the real points behind Attorney General McKenna’s proposals: “it’s your money.”