Refresh Washington’s open government rules for digital age

Illustration by
Illustration by Bergen County Record

Public servants in Washington can’t use personal cell phones or other electronic devices to hide official business from the public. This point of law was hammered home in a 2015 state Supreme Court ruling; justices unanimously ordered Pierce County Prosecutor Mark Lindquist to produce copies of text messages from his personal phone and turn over any pertaining to his work.

Now the effects of that watershed decision are flowing down to hundreds of governments around the state.

The state Attorney General’s office has released a set of proposed updates to the model rules of Washington’s Public Records Act. The rules, last revised in 2007, are used by cities, counties, school districts and other government agencies as the best available guidance to comply with public requests for information.

They’re overdue to be sharpened, especially with regard to adapting to the fast-moving 21st century world — a place where file cabinets full of paper documents are being supplanted by gigs of digital data kept on hard drives and in cloud storage.

The rules also need to catch up to new laws and legal rulings, like the Lindquist case. In Nissen v. Pierce County, a former sheriff’s deputy successfully sued the county for text messages she believed would show the prosecutor retaliated against her.

The next several weeks will tell whether the long list of proposed changes withstands scrutiny. Public comment is welcome through September, and a hearing is set for Oct. 4. The more input from open-government watchdogs, the better.

Leading the list is new language underscoring the public’s right to access information stored on personal devices if those records concern agency business.

The model rules already include emails in the definition of official “writings” presumed to be public records. The updates would add texts, social media posts and databases. Who knows what telecommunication advances they’ll have to add in another 10 years?

Then there’s this nugget of sound advice, obviously derived from the Lindquist case:

“Agencies could provide employees and officials with an agency-issued device that the agency retains a right to access. Or an agency could limit or prohibit employees’ and officials’ use of home computers, personal devices or personal accounts for agency business.”

At first blush, the rule changes appear to align with two laws approved in Olympia this year, legislation that struck a reasonable compromise between preserving the public’s right to know and protecting local governments from expensive, over-the-top requests.

The rules would mandate officials be trained on electronic record retention and keep a detailed log of record requests. They encourage releasing data through websites, online portals and other modern means. But importantly, they also enshrine the low-tech tradition of walking into an agency to ask for a document.

Meanwhile, agencies would be granted some discretion to charge electronic record fees and to deny overbroad requests (such as for all documents retained by an agency) as well as requests generated by automated computer programs, known as “bots.”

There’s also a new emphasis on letting agencies prioritize their work based on the urgency, size and complexity of records requested. Such triage makes sense, though officials should be watched so they don’t abuse the system, label too many requests in the lowest-priority “Category 5” and delay processing records for months.

In the end, upholding the public’s right to know must be the paramount mission of the AG’s model rules. It’s not just about transparency; it’s about being responsible to taxpayers. As of this week, Pierce County’s legal bills in the Lindquist text-message fiasco stands at $612,982 and climbing.

It was a costly lesson, to say the least, and any guidance that keeps other governments from repeating it is smart advice.

How to comment

The public may comment on the proposed model rule changes by Sept. 29 via online form, or by emailing Open Government Ombuds Nancy Krier at NancyK1@atg.wa.gov with the subject line “Model rules.”

There also will be a public hearing in Olympia on Oct. 4 from 6 to 8 p.m. in the Legislative Building’s Columbia Room.