January 23, 2011 in City

Tread carefully when changing state public records law

By The Spokesman-Review

OLYMPIA – Ever since the voters decided public records should be, you know, public, public officials have complained about the unfairness of being forced to produce some of those records when a member of the public has the nerve to ask for them.

Such requests are seen by some legislators as particularly onerous on small cities and counties that get taken to court and fined for failing to give a person something to which he or she is entitled. The fine sometimes threatens to blow a hole in that city or county’s meager budget, which generates sympathy from folks who routinely saddle local governments with mandates but no money.

In these stories of overwhelmed governments, the villain is usually a vexatious citizen who demands reams of documents then sues when some poor overworked public employee fails to produce a single page, record or missive.

There’s a variation this year in which the villains are prison inmates, who are even less sympathetic than nosy citizens. Attorney General Rob McKenna is proposing several restrictions to rein in a handful of inmates who file the lion’s share of all lawsuits over public records.

His statistics suggest this is a problem worth solving: three-fourths of all public records actions in the state are brought by inmates, and half of those by five inmates who have turned winning such cases and collecting the fines into a cottage industry that spawns new lawsuits with the proceeds from victories.

He proposes that inmates who win such lawsuits over illegally denied records would no longer be able to collect the fines, which can range from $5 to $100 for each day the record was denied.

Inmates have no natural constituency in the Legislature, so it’s not surprising legislators might be inclined to squash this cottage, particularly after being told the inmates sometimes mine the files, find personal information about corrections officers and have contacts outside harass them or their families.

McKenna said he has no desire to expand the restrictions beyond inmates. But some members of the House State Government Committee seem eager to run toward this slippery slope. When Senior Assistant Attorney General Tim Lang said they weren’t targeting inmates per se – because some do have legitimate requests – but the cost of the lawsuits they generate, Rep. Gary Alexander opined the clampdown shouldn’t stop at the prison gates.

“Maybe this is the first bite,” Alexander said, and the criteria should be applied to other frequent filers of public records requests. “Maybe we ought to be reconsidering that criteria and still not blocking valid public records requests.”

But therein lies the rub. If a person files a valid request, and a government agency fills it, there’s no dispute, no lawsuit and no fine. If a person files an invalid request, and the agency denies it, there may be a dispute and a lawsuit, but no fine. (There could be attorney costs, but McKenna’s proposal doesn’t do away with those even for inmate suits.)

It’s only when a person files a valid request, the agency improperly fills or denies it, is sued and loses, that there’s a fine. So how does anyone craft a law that picks out the invalid requests at the get-go?

Clearly, instances of harassment based on information found in records should not be tolerated. But that might be better addressed with added prison time for any miscreant who plans or carries out a crime based on information gleaned from a public record, similar to the extra penalties for crimes with guns.

If we don’t want inmates to profit from multiple records requests, make it possible for a judge to order the fines from their suits to be paid into an account toward some worthwhile goal the state can’t afford. According to the budget writers, there are hundreds of them.

Removing the penalties for noncompliance with the public records law will only lead to one thing: Noncompliance with the law.

Those who doubt that should consider: The original Public Records Act had no penalties for noncompliance. They had to be added later by the Legislature, and even increased, to force some agencies to obey the law.

If legislators start down this slippery slope, one can easily see a time when the law is reduced to a mere suggestion that governments come up with documents when they want, if they want, for their pesky citizens.

Spin Control, a weekly column by Olympia Bureau Chief Jim Camden, also appears online with daily items, reader comments and videos at www.spokesman.com/blogs/ spincontrol.

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