This past weekend while the cool people were out skiing deep powder or wing-suiting off the summit of Mount Rainier, a certain collection of nerds was at the annual meeting of the Washington Coalition for Open Government (WACOG). 
This crowd cares about the availability of public records and open meetings – two of the major underpinnings of our version of good governance and the watch dogging and citizenship pieces that go along with it.swlogo
The good news is that Washington has very strong open records and open government laws. But there’s a problem: there are also a lot of exceptions. In fact, since 1972, the number of items on the exceptions list when it comes to the Public Records Act (PRA) has ballooned to more than 500.
The Sunshine Committee is charged with reviewing the growing list of exceptions, and making recommendations about their validity. And of course, you’ve already divined another problem – all they can do is recommend.
And that holds true with the rest of the architecture of oversight that touches upon the PRA – the people who are associated with it are paper tigers- with no statutory authority to fix things.
“It’s time to move beyond deliberation,” said the Hon. Michael Schwab (ret.), Sunshine Committee Chair. He suggests WACOG work with legislators to bring legislation forward in a proactive way. WACOG is a reactive body in that it generates a list of hits and misses as legislation affecting the PRA emerges during the session. This is part of the natural progression of any interest group: you’re reactive long before you’re proactive.
But there is indeed a piece of legislation in which WACOG took a proactive role that looks like it may fly. It’s a requirement that public officials receive actual training when it comes to managing requests under the PRA.
The person in charge of implementing that training, across all the agencies across all the state is Nancy Krier, the PRA ombudsman in the Attorney General’s Office. To his credit, Attorney General Bob Ferguson not only re-instated the ombudsman’s position, he made it full time. Even so, the tasks associated with the job are monumental.
But even after she rolls out the distance-learning-capable curriculum on the website and updates all the best practices content, Krier says chances are she’ll still be bogged-down with all the case-specific problems that come along with PRA requests. The main problems involve issues of timeliness, or requests for which she is asked to magically divine the validity of claims of exemption. But even if an agency is not responding in a timely fashion, or a claim of exemption is most likely invalid, the sad fact is that like the Sunshine Committee, all Krier can do is give a suggestion or try to make a call to smooth things over. There is simply no real mechanism for satisfaction outside a full-blown lawsuit.
Judge Schwab suggests the Sunshine Committee join forces with the ombudsman. It’s a great idea in principle, but the basic problem remains – there is no power vested with any of them to actually do anything. Even if an agency claims a bogus exemption, or more lately, just makes one up – all anyone can do is wag a finger and advise the aggrieved party to go to court-which of course takes money and time typically not underwritten by the taxpayers.
One of the session’s moderators, Peninsula College journalism professor emeritus Frank Garred simply remarked, “We’re not getting anywhere.”
Schwab also recommends recruiting a panel of retired judges to provide a more “real time” component to the examination of, and recommendations regarding PRA exemptions. This is a great idea, except again, getting told to go file a lawsuit is no more effective in “real time” than it is a month later. Without teeth, the PRA’s oversight architecture can do nothing to advocate for the small time watchdogs who dare throw themselves up against government’s rocky shoals. As if dogs were even ocean dwelling creatures.
To make matters worse, WACOG President Toby Nixon observes that new exceptions to the PRA are being created out of whole cloth from the obscure fine print that accompanies legislation. In other words, if your agency doesn’t find the PRA exemption it needs in the list of 500, it can just dive into the language of the controlling legislation and make one up. After all, beyond the good will of individual office holders or bureaucrats with a penchant for good governance, what’s really to stop them in the early going?
Garvey, Schubert & Barer ‘s Judy Endejan says that another emerging PRA dodge involves the overbroad application of attorney-client privilege. If you don’t want to conduct business transparently, just bring your attorney into the room – boom – attorney client privilege. She also cites the constant use of the “effective law enforcement” provision in RCW 42.56.240(1) as another example of the overbroad and ill-defined language frequently used to seal what should otherwise be public records.
What you see emerge is an ongoing, decades long sword fight between state agencies, their lawyers, and outside lawyers, journalists, watchdogs and gadflies. While state and local agencies have certainly lost their fair share of lawsuits involving PRA complaints and paid with your dollars accordingly, the power still clearly lies with those who seek fist to cover up.
The legislature is also doing battle over records involving juvenile offenders with more probably coming in the future regarding executive privilege, which unlike Christine Gregoire, Jay Inslee has pledged not to invoke.
In the meanwhile though, the requestors continue their quests to gain insight into the workings of government – and to be fair, one of the problems indeed lies with rogue requestors who tie up staff time and use the PRA in an attempt to intimidate, obfuscate or annoy public employees – or all too often- investigate what amount to paranoid fantasies.
Here’s the problem with the gadflies: they are the rocket fuel that powers those who seek to limit transparency.
I think that along with training records keepers, ombudsman Krier needs to develop a robust training regime for requestors too. The strategic use of keywords, Boolean logic, refining ideas and interacting in socially acceptable ways might all be included.
When a gadfly requests the entire stack of email from an agency, or all documents pertaining to “driveways” in the county – they are hurting the cause. Not only that, they’re providing a pathway by which the agency – should it not be interested in sharing the information- can “triage” the request and build a case for releasing the records over a period of years instead of weeks or days.
The battle between exemption-seeking government types who want you to keep your darned nose out of their business and those responsible for keeping an eye on them is going to continue. But it is important, now more than ever, for people to speak with their representatives at every level about the importance of public records and open meetings.
Something called, “Sunshine Week” is coming up the week of March 16. To bring awareness, like last year, I will be doing a television program (my day job) on open records – and my hope as a WACOG member is that you’ll make public records and open meetings a part of your discussion with your family, with the kid’s teachers, with your community’s leaders and if you’re motivated enough – with the lawmakers who represent you and your neighbors.
