It is one of the frustrating flaws in Washington’s open government laws.
Even if residents file court actions for violations of public records laws, and even if they prevail in court, and even if adequate penalties and costs are awarded, the financial burden falls on taxpayers rather than the politician or public employee who thwarted disclosure.
That’s why a recent decision in Olympia is interesting and perhaps important. By using state ethics laws, rather than the open public records act, records seekers could force individual bureaucrats and politicians – not the taxpayers – to pay fines.
On Jan. 28, Thurston County Superior Court Judge Paula Casey ordered the state Executive Ethics Board to investigate a complaint against Department of Transportation Secretary Paula Hammond and 27 of her subordinates.
The complaint surrounds the Seattle mayoral election in 2009 and began when a losing candidate – Elizabeth Campbell – asked the department for a copy of a video simulation of the Alaskan Way Viaduct in a severe earthquake.
The department replied that it would take 30 days to fulfill the request. This appears to be a boilerplate reply, using the 30-day estimate, whether it would actually take that long or not. In fact, the DOT clearly could have responded immediately.
E-mails show the department and top staffers of Gov. Chris Gregoire were concerned about the mayor’s election when tunnel supporter Greg Nickels appeared to be losing in the primary.
“It will not be helpful if this election turns out to be a referendum on the tunnel,” wrote Gregoire aide Ron Judd to Hammond. “So we need to work on ensuring as much as possible that does not happen. Thoughts??”
“Great minds definitely think alike,” responded Hammond.
The DOT appears to have decided that it would try to control the release of the video, finally providing it to KING-TV, which aired it just a week before the election. Only then was it given to Campbell, still within 30 days of the initial estimate, but weeks after it could have been released.
“We decided we were going to handle how it was released,” Hammond told The Seattle Times. “We weren’t going to leave it to Elizabeth Campbell.”
Campbell no longer had much interest in the video, which she thought might frighten voters into opposing the viaduct and supporting the tunnel that Campbell, herself, opposed.
“It doesn’t necessarily feed into my agenda,” Campbell told Publicola’s Erica Barnett. Campbell filed an ultimately unsuccessful state ethics complaint against Gregoire and DOT for using public resources to interfere in the Seattle mayoral race. She did not challenge the delayed release of the video.
Tunnel foe Mike McGinn won the mayor’s race and has done battle with DOT since.
In December 2009, Walt Jorgensen filed an ethics complaint, citing state law that makes it a violation to “intentionally conceal a record.” Violations can bring fines up to $5,000.
Ethics board executive director Melanie de Leon decided Jorgensen’s complaint was not within the board’s jurisdiction. She also determined it wasn’t a records-law violation anyway because DOT acted within the 30-day estimate.
Jorgensen and his attorney, Bob Shirley, appealed, claiming the disclosed e-mails show not only that the video was immediately available, but that the DOT had motive and intent to delay release.
Disclosure law requires agencies take the “most timely possible action on requests” and “provide a reasonable estimate of the time it will require to fully respond.”
So telling requesters it will take 30 days, whether the request is simple or complicated, isn’t an estimate and isn’t reasonable.
Without commenting on the underlying issues, Casey ordered an investigation.
De Leon has two employees, one investigator and between 35 and 45 active cases at any time. She said it might take some time, but that she will follow Casey’s order.
Whether the board finds a violation or not, Jorgensen and Shirley may have already succeeded in highlighting a new deterrent against thwarting open government – when acting in bad faith, employees and politicians, not taxpayers, would pay the fines.
Peter Callaghan: 253-597-8657 peter.callaghan@thenewstribune.com blog.thenewstribune.com/politics
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