Auditor’s public disclosure report, a possible tool for revising state law, draws praise and skepticism

Every year, state lawmakers propose revisions to the state Public Records Act, a law passed by initiative in 1972 and amended many times since.

Every year, open-records advocates battle those proposed revisions, with varying degrees of success.

In 2017, the eternal struggle will play out again during the legislative session, but revision-minded lawmakers will have a new weapon to wield: a survey by the Washington state auditor measuring the costs and effects of records requests on state and local governments.

The survey, completed in August and discussed in September by a legislative subcommittee, has raised eyebrows and drawn praise as well as criticism. Backers of proposed revisions to the records law say it demonstrates the growing burden and expense of responding to large-scale requests in the digital age. Critics question the report’s methodology and cite information gaps that create misleading impressions.

“It’s no surprise that the report focuses on agency complaints about what a burden it is to have to comply with the PRA,” said Toby Nixon, a Kirkland city councilman, former legislator and president of the nonprofit Washington Coalition for Open Government. “The study was designed for the purpose of providing a foundation for the Legislature’s continuing efforts to make it harder for people to get access to records. It was not designed to uncover agency abuses and resistance.”

Jennifer Ziegler of the Washington State Association of Counties gave a sunnier view of the report in September, when she spoke to the Joint Legislative Audit and Review Committee , a group of House and Senate members from both parties.

“This is the start of data to help inform a legislative conversation,” Ziegler said. “We do think it’s a valuable start. Records requests are increasing in volume, they’re increasing in complexity, and as a result, it’s costing us more to respond to them. We’re looking for some tools to help us respond better through this process.”

The auditor’s report included tidbits of information that cut against conventional wisdom. For instance, pesky reporters aren’t the most prolific requesters. The survey found that media organizations represented only 3 percent of total requests received. Most came from individuals and law firms.

Cities and towns reported receiving the most requests, the report found. State agencies and counties came next, and school districts came last.

But the biggest headline from the report was a number: $60.9 million. That was the total cost of responding to records requests, spread across 541 local and state agencies that responded.

State law bars governments from recovering those costs and limits the fees agencies can charge for public records. The $60 million figure provided the basis for horror stories, chiefly from small cities and local governments, contending that voluminous “give-me-everything” requests eat into their small budgets. Curtailing such requests and potentially increasing fees to respond to them was the aim of a bill proposed in the 2016 legislative session that eventually died.

State Rep. Ed Orcutt, R-Kalama, alluded to such expenses during the September meeting, suggesting that price of responding to records is likely greater than the auditor reported, since 382 government agencies didn’t respond to the survey at all.

“Sixty million is a big number,” Orcutt said. “The fact that that number could be bigger is a concern.”

Yet the numbers also reveal anomalies. Consider South Sound 911, a hybrid emergency dispatch and record keeping entity based in Pierce County. It manages police report records for multiple agencies — the most common type of public record request, according to the auditor’s report.

South Sound 911 ranked eighth in the state for number of records requests received in the last fiscal year (9,022), the report showed. A handful of state agencies received more requests, along with King County (10,253) and the cities of Seattle (9,172) and Spokane (16,157).

But South Sound 911’s tally is greater than the number of requests received by the cities of Tacoma, Lakewood, Puyallup, Pierce County, the Port of Tacoma and the Tacoma School District. Collectively, those agencies handled 8,521 requests over the same period, according to the auditor’s survey.

Why does that matter? Money. The survey shows those agencies reported spending a collective $4.8 million to handle records requests.

In contrast, South Sound 911, handling more requests than all those agencies combined, reported spending $334,380. Such disparities reflect multiple factors, including the complexity of records requests, varying levels of detail in survey responses, and different methods of calculating costs.

The survey asked individual agencies whether they tracked costs. Some didn’t. Others listed all employees with even a partial role in handling records. The self-selection aspect of the survey contributed to disparities.

During the September JLARC meeting, Rep. Gerry Pollet, D-Seattle, wondered why the survey focused solely on governments responding to records requests rather than seeking input from those who request records.

“Rather than asking just governments, what about asking the requesting community?” Pollet asked.

Senior performance auditor Tania Fleming told The News Tribune in a recent interview that such an effort was beyond the scope of the survey commissioned by state lawmakers, but added that the auditor’s staff members sought input from open-records advocates.

“We did speak with a number of stakeholders on both sides,” she said. “So not only governments but advocates from the media and others. We tried to incorporate some of the ideas and thoughts and concerns from the requesting community.”

Fleming stumbled over a key question during the September meeting. Asked whether the Public Records Act prohibits disclosure of commercial information, she said no. In fact, the law forbids the use of lists of public records for commercial purposes, and a lengthy list of exemptions restricts disclosure of various types of commercial records.

“I just answered incorrectly,” Fleming told The News Tribune. “I was thinking of any areas in the law that allow governments to charge for commercial records. I think that’s where my head was at.”

The auditor’s survey included a rundown of laws in other states and potential practices to ease the burden of disclosure. The ideas include greater efforts to post commonly requested information online, better use of technology and dispute resolution policies to prevent litigation.

At the JLARC meeting, Rowland Thompson, executive director of Allied Daily Newspapers, told lawmakers the $60 million figure had to be viewed in a broader context. He pegged Washington’s combined annual budgets of state and local governments at a range between $75 billion and $85 billion — making the $60 million statewide cost of public disclosure a fractional drop in the bucket.

The solution is not increasing fees for public records, Thompson said, referring to one of the ideas mentioned in the auditor’s report. Instead, the answer is better management of records.

“I would put to you, as we move forward in this dawning of the digital age, that the management of records is an essential government service,” he said. “The digital age is going to punish governments and businesses who don’t manage their records.”

Thompson suggested that smaller governments could band together in consortiums to handle records requests, pooling their resources to gain efficiency.

Rep. Pollet, mindful of Thompson’s advocacy for news organizations, took an opportunity to tease him during the September meeting.

“Is it fair to say the news media believes access to public records is the price of freedom?” Pollet asked.

“Don’t you agree?” Thompson replied, earning laughter. “Well it is. It’s not just that. It’s the price of trust.”

This story was originally published October 1, 2016 at 4:59 PM with the headline "Auditor’s public disclosure report, a possible tool for revising state law, draws praise and skepticism."