‘Do not yield’: The long struggle for open records in Washington state

(The Center Square) – A bill introduced this session that would expand tax rebates for Washington newspapers was modified to include a statement chastising the press for opposing “attempts to rein in frivolous requests, costing local and state governments millions of dollars each year.”

The observation perhaps reflects a general state government attitude held toward media efforts to gain better transparency, as several other state offices have also become embroiled in disputes over public records.

For years, members of the Legislature argued that their emails were not subject to the 1972 Public Records Act. A former Senate counsel told Crosscut that “the company line for a very long time” was for people requesting emails to go “pound sand.”

Instead of agreeably pounding sand, the Associated Press and other media outlets eventually took the matter to court. In 2019 the State Supreme Court ruled that legislators were subject to public record requests. During the lawsuit, the Legislature hastily passed a bill that would have codified the public disclosure exemption into state law, but Gov. Jay Inslee vetoed it after intense public backlash.

A 2018 special task force recommended the legislature “strive for greater transparency” while acknowledging “a need to protect the right of privacy of individuals in their communications with legislators, beginning with existing exemptions of the Public Records Act and adding narrowly crafted exemptions as needed.”

However, a recent investigation by the McClatchy newspaper group found that the requests were being denied using an exemption the known as “legislative privilege.”

Such an exemption, in limited fashion, exists for the executive branch. In 2013, the State Supreme Court ruled that in Freedom Foundation v. Gregoire that the governor could withhold documents normally subject to public disclosure under “executive privilege,” though Inslee has previously said he will not exercise that privilege.

Nevertheless, Inslee’s office is still facing a lawsuit filed in December by the Citizen Action Defense Fund, or CADF. The nonprofit sought records related to collective bargaining negotiations and discovered that the state Office of Financial Management, or OFM, was refusing to provide the original offers made by either Inslee’s Office or the public unions until after the new operating budget is enacted.

CADF’s lawsuit alleges that OFM withheld more than 5,000 pages of public records, which under the Public Records Act could potentially result in a $71 million penalty if a judge rules the violations occurred and issues the maximum fine.

The governor’s office and the Legislature aren’t the only state entities to struggle complying with public records law. While State Attorney General Bob Ferguson’s Office has defended the concept of legislative privilege, his office’s Public Records Director La Dona Jensen in June 2022 instructed a private citizen to delete emails obtained through a public records request, send a confirmation email that they had been deleted, and “make no further use” of them.

Those emails obtained by The Center Square revealed that Ferguson’s attorneys advised against a recommendation ultimately endorsed by the attorney general to create a data archive for public recordings of police use of force incidents.

Washington Coalition for Open Government President Emeritus Toby Nixon wrote in an email to The Center Square that “the person who holds the records is under no obligation to respond in any way to this request from the attorney general, or to comply with their request to destroy the records. However, if the AG went to court and got an order requiring destruction of the records, then one would have to obey the court order or be in contempt – at least, after exhaustion of appeals.”

In July 2022, Attorney General Office Special Data Advisor Sue Feldman sent a copy of a draft request for proposals, or RFP, to a state attorney with the New Jersey Attorney General’s Office. The RFP concerned the creation of a public database for police use of force incidents. In the email, Feldman instructed the New Jersey state attorney to delete the draft RFP after reviewing it.

Nixon wrote in an email that while the instructions didn’t violate Washington’s public records law specifically, “if the New Jersey person deleted it after having used it as part of their agency responsibilities, they could be violating the New Jersey public records retention law, depending on its provisions. I know that if I was that New Jersey state employee, and I reviewed and commented on a document within my official duties, I absolutely would not delete it – I would just ignore that the Washington person asked. It is really bad form to ask the recipient to possibly violate New Jersey law by deleting a public record there.”

In 2012, Washington Policy Center Government Reforms Director Jason Mercier noted that since the Public Records Act was approved by voters in 1972, the number of public disclosure category exemptions has increased from 10 to more than 300.

“State courts have further weakened the public’s access to information with various legal rulings,” he wrote. “Although on paper Washington would appear to have strong open government laws, reforms are needed to restore the intent and promise of the of 1970s laws. By enacting new open government reforms Washingtonians will once again reiterate that they ‘do not yield their sovereignty to the agencies that serve them.’”

A court hearing for the CADF lawsuit is scheduled for March 23.