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January 23, 2011 in City
Tread carefully when changing state public records law
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.
Supermajority for taxes unconstitutional, judge rules 
berrybestfarm on January 23 at 9:29 a.m.
As inmates, with limited rights, isn’t the simple solution to have any fines applied toward the cost of their incarceration?
Liberty_Bell on January 24 at 6:07 a.m.
And the inmates running the asylum, should also be in jail, but of course the Public Records are too clear that the voter prefers the imbecile, perfectly explained by Justice Holmes, Buck v. Bell, vote Lisa Brown!
And this is where today’s unanimous opinion, written by Justice Mary Fairhurst, dwells. The court could only reach the constitutional question if Sen. Brown’s writ of mandamus was proper, and the justices said that such an action would violate the separation of powers doctrine. “A ruling by this court overturning the president of the senate’s ruling on a point of order would undermine the constitutional authority of the senate to govern its own proceedings and the lieutenant governor’s duty to preside over those proceedings.”
The court pointed out that Brown could have appealed to her colleagues and overturned Owen’s ruling with a simple majority. Considering all her options, the Supreme Court tartly criticized Brown’s decision to go to court.
“Brown appeared to urge Owen to declare [the law] unconstitutional. Owen refused to do so, observing that it is the duty of the judiciary to make legal rulings. Having failed to convince Owen to make a legal determination, she now asks this court to make a parliamentary ruling. We decline to do so.”
Justice Fairhurst wrapped things up with this:
“This original action is improperly before this court on application for a writ of mandamus and is a nonjusticiable political question. Intervention of this court into an intrahouse dispute over a parliamentary ruling to compel the president of the senate to perform a discretionary duty would be a grave violation of separation of powers. We dismiss the action.”
Vote Imbecile; Vote Lisa Brown, where that 8th grade Civics Class, was such a confusing subject matter.
Those Public Records, make for the perfect analysis of the local voter, (D)umb, (D)umber, and (D)umbest!
dzink on January 26 at 10:10 a.m.
I am getting really tired of the small agency being shown as overwhelmed by public records requests when the truth is they just don’t want to fill them. The smaller the agency the less records they have to ask for.
If the agency really only forgot to produce one piece of paper and it was just an innocent mistake the penalites are not going to be very much. Really not worth the effort to go to court.
What happens when a small agency claims that the requester is asking for public records in order to use the records to harass them. Barring inmates who are trying to harass the jailers with some terrible threats, Isn’t that why everyone asks for public records? They think something is wrong in their government and they want to find out the truth and expose it?
What do you do if the agency, regardless of the penalties, denies records they have full knowledge are not exempt but they just don’t want the requester to get them. If it is a large agency it is okay to sue them. But if it is a small agency they are over worked and the requester is just harassing them.
I guess small agencies can do no wrong simply because they are small. I have found this to be the opposite.
The PRA is fine. If an agency is getting a large fine, no matter how high the fine is, they are doing something wrong, Otherwise it would be $5 per day, not $45 or $100.
Use technology. Make all records available to the public on-line. Even small agencies. The public could access it at their leisure and the overworked employee of a small agency never even knows someone looked. Of course you will find out that most clerks want to know what was looked at.