Agencies should pay if they violate open records law
THE NEWS TRIBUNE
Open-government advocates have successfully beat back the most egregious attempts to undermine public disclosure this legislative session. But they are still poised to suffer defeats that could have lasting implications for the fight to keep the public’s business public.
A couple of bills that appear to be all but guaranteed a trip to the governor’s desk, while not the broad rollbacks of public records laws that lawmakers eyed earlier this year, would chip further away at state government’s presumption of openness.
The most troublesome is a bill that once was a well-intended attempt by Rep. Mark Miloscia (D-Federal Way) to adjust fines for public-records violations for inflation.
Miloscia proposed restoring the law’s bite by increasing the maximum fine from $100 a day – which it has been since the 1970s – to $500 a day. Even the higher figure may not deter an agency from buying itself a few days before releasing records, but it would discourage protracted delays.
Miloscia’s legislation, House Bill 1899, also had something for public agencies to like. In exchange for higher payouts on the worst public-records violations, Miloscia proposed eliminating the minimum $5-a-day fine. A sympathetic judge could find an agency violated the law but assess no penalties.
But a funny thing happened on the bill’s way to the Senate: Lawmakers, bowing to pressure from local governments and schools, scrapped half the bill – the half that would have sent a message that public disclosure is a priority.
What’s left is legislation that does nothing for public records requesters – the maximum fine would remain $100 a day – yet would allow public agencies to violate the law scot-free.
Lobbyists who testified in support of the neutered bill said it would help reduce “disingenuous use of the Public Records Act for personal gain.” What it actually would do is create two classes of requesters – one deserving of an agency’s compliance with the law and one that’s not. Record-seekers would be assigned to each group based partly on the agency’s ability to persuade a judge that the requester in question is a worthless pest.
If that is lawmakers’ aim, Attorney General Rob McKenna could have saved himself some ink.
McKenna drafted Senate Bill 5025 to eliminate all penalties for requests made by prison and jail inmates. The legislation is the sequel to a 2009 law that limited access to public records law for inmates. That law gave agencies the ability to seek restraining orders against prisoners who file records requests with the intent to harass or cause harm.
This latest bill would go further, giving agencies much greater latitude to ignore or sit on records requests from inmates. Judges could award penalties if records were denied in bad faith, but such a finding likely would be rare.
The threat of penalties is one of the few practical tools available to ensure public agencies’ timely and complete compliance with the public records law. If lawmakers are truly concerned about a few requesters with less-than-perfect motives, a better idea would be to provide courts the option of making penalties payable to a worthy cause.
But a loophole that exempts agencies from paying fines to some people? Mark our words: Once placed in law, that loophole would only grow.