Anyone who's asked for a public record knows government clerks typically charge a per-page fee before handing over a copy. So it only seems fair that the state Supreme Court has now made the IOU obligation a two-way street. It did so by ruling last week that public agencies can be penalized on a per-page basis when they improperly withhold documents.
At least that's one way to look at the court's 5-4 decision in a case affecting Washington's Public Records Act. The most obvious interpretation is that the ruling gives more bite to the PRA – a nice turn of events for a law that has had too many teeth knocked out, through frontal attacks and sucker punches.
The 1972 law says that citizens “do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” Judges are supposed to construe the law liberally “to assure that the public interest will be fully protected.”
A majority of the high court gave appropriate deference to the law in the case brought by the Seattle Times against the state Department of Labor and Industries. The newspaper asked L&I for records pertaining to lead-poisoning exposure at a Bellevue gun shop for the paper’s “Loaded with Lead” series. L&I foolishly withheld the records, the Times sued, and a King County Superior Court judge decided in the paper’s favor.
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Judge Catherine Shaffer divided the records into groups, according to the length of time they were withheld and the brazenness with which the law was violated. She issued penalties ranging from a penny to $5 per page for every day the documents weren't released. The total L&I bill topped a half million dollars.
Shaffer had the authority to set a per-page penalty, the Supreme Court affirmed on appeal, because trial court judges make the best arbiters of what constitutes a public record. It might be a thick binder of papers, a single printed page, a seven-word text message or a screen full of computer metadata.
“Limiting trial courts to imposing penalties based on a set definition of ‘record’ would deny them the flexibility needed to respond appropriately to PRA violations in this age of rapidly advancing technology,” according to the majority opinion written by Justice Debra Stephens.
Washington cities, counties and school districts will surely view the ruling with scorn. It introduces a new variable at a time when they're already balking at the mounting cost and workload of records requests pouring in from cranks, gadflies and serial filers.
A bill that would have given local governments some latitude to prioritize requests and limit the hours spent responding to them died in the Legislature this year. Their concerns are worth hearing; a state auditor’s report due this year will help quantify the volume of requests clerks receive, and the time it takes to deal with them.
But the public’s right to scrutinize the government they pay for must always reign sovereign. An effective way to ensure that happens is to give trial judges broad discretion to enforce the PRA. If a judge gets carried away and abuses that discretion, a penalty can be tossed out on appeal.
Last week’s ruling continues a hot streak of decisions by the Supreme Court promoting government transparency in the digital age. In August, it unanimously ruled that text messages sent on the private cell phone of an elected official (specifically, Pierce County Prosecutor Mark Lindquist) are public records if they relate to public business.
It’s far too early to proclaim that Sunshine Week, the annual March celebration of the public’s right to know, has blossomed into Sunshine Year. But openness advocates might as well raise the blinds and enjoy it while they can.