See, you’re interested.
There’s something about a secret document, or a secret proceeding that piques the curiosity. As well it should, especially when we’re talking about the workings of the government we all pay for. 
As long as there are government officials dumb enough to try to cover up their bad acts, and crooks willing to stick their hands in the lens of the local television news crew – we’ll all have jobs.
Meanwhile though, here’s what the above-average, engaged citizen should, but probably doesn’t, know about the continuing quest for open records and open government here in the Evergreen state.
Sunshine Week
Some insight into my life as a complete nerd can probably be garnered from my attendance at this last Saturday’s Washington Coalition for Open Government conference on Mercer Island. It was a beautiful sunny day, and yet I was listening to speakers talk about why accessing public records is important, how some of the state’s more enlightened government officials view it, and the problems associated with balancing the public’s right to know against posing an undo burden on harried clerks.
It’s topical because this is Sunshine Week: A time when we celebrate our right to review public records, and to advocate for open government.
From insisting upon open meetings, to protecting our right to review public records, to advocating for open court proceedings, shining light into the dark nooks and crannies of this Democracy is a vital part of preserving our collective way of life. The fungi of corruption and cronyism spread quickly without sufficient light.
Yes, it’s easy to hate “the media” or “lawyers” or other watchdogs who annoyingly exercise their rights to examine records and attend meetings, but just think about the corruption and malfeasance we’ve witnessed right here in little old Western Washington in just the past year alone, and you can see why going all anti-watchdog with your like-minded collection of Facebook friends is a little ignorant.
Corruption, cronyism, kleptomania, fraud, waste, abuse, malfeasance and featherbedding isn’t limited to any one political party or agency. It’s an equal opportunity cancer that has invaded the body politic from the tiniest of local taxing districts to the corner offices at some of the largest and most important agencies and institutions we have.
So with this as a backdrop, you should know there is a fight over keeping public records, well, public.
Our New Top Lawman
Fortunately, Rob McKenna was a big proponent of open government, and his successor, Bob Ferguson leans the same way.
Attorneys General have a difficult time balancing the interests of their government clients with their duty to encourage transparent governance. But Washington has an open government ombudsman sitting right in the AG’s office in the person of Tim Ford. The problem however is that it’s a part time gig. Ferguson made a campaign promise to move the ombudsman back to full time, and he says, “I intend to keep my campaign promise” on the matter. That’s great.
Yes there is a fox guarding the hen house problem with the AG’s office involved in preserving open government, but as long as we keep getting lucky, I guess it is what it is.
There out to be a law!
Washington’s law is very clear in stating that most records should be open to the public, but as you might imagine, lawmakers and bureaucrats have been hard at work carving out more than 500 exceptions to the rules.
In addition, some government types just don’t give a damn. News Tribune reporter Sean Robinson tells some real knee-slappers about clerks who have decided that they will be the gatekeepers when it comes to the right to know. One of his best stories is about the “special box” a clerk was using to segregate, and hide, records that were subject to a public records request. He does occasional surveys of compliance with RCW 42.56 from time to time, and the stories are classics.
So enter legislation like House Bill 1128, supported by the Association of Washington Cities wouldn’t you know it, that would allow what amount to slap suits against anybody who requests a public record if the agency feels the request is, “harassing, intimidating, interfering, or burdensome.”
That threshold of action covers just about every public records request dating back to the use of stone tablets.
House Bill 1185 would make it prohibitively expensive to pull records. Another roadblock.
The Gadfly Problem
So why is there even a debate about open records? Well, let’s start with the gadfly problem.
Despite the fact that just about every meaningful piece of investigative journalism and case law relies on access to public records, there is a down side to liberal rules – and it involves gadflies. Now a gadfly is defined as, “a person who persistently annoys or provokes others with criticism, schemes, ideas, demands,requests, etc.” and every city, every county, and every media outlet suffers from the gadfly problem.
Gadflys can include prisoners trying to bring the wheels of government to a grinding halt, trolls sitting in their mother’s basement dreaming up conspiracy theories, off-brand online bloviators (moi?) who think shelling the local clerk with gargantuan records requests lends their efforts credibility, and opposition research consultants or attorneys engaged in blind, but comprehensive and time-consuming, fishing expeditions.
Listen, none of us want government staffers servicing meaningless records requests on the taxpayer’s dime. The question though is how to stop them without blowing a hole in our rights to obtain public records.
The problem is that the gadflies are screwing-over “legitimate” requesters by providing the bureaucracy the political cover it needs to restrict access to public records. Yes, gadflies are a problem, but using them as the linchpin for policy making is wrong, and the bureaucrats know it. That won’t stop them from trying to cover their muddy tracks though.
You might think the answer would to simply license or register “legitimate” requesters. Well, licensure or the government’s granting of legitimacy and picking winners and losers among journalists, or attorneys, or even gadflies is a real problem too. That whole idea runs up a ton of Constitutional and ethical problems that make something like credentialing impossible.
So, we’re stuck with the gadflies. And what that means is that the well-meaning public officials who embrace transparency, and the well-meaning investigators who are performing legitimate oversight roles – are at the mercy of a policy battle driven by a collection of nut jobs.
Welcome to America.
The PIO Problem
I remember walking the halls of the county courthouse as a reporter speaking with elected officials every day. Every office was open. Everybody was available through a quick “hi” to the secretary, and a knock on an open door. I worked that with way in four states with mayors, Governors, law enforcement and government officials of every stripe for years. It truly was the good old days.
Now, there are 14 layers of staff and concrete between journalists and other civically active people and their government officials. Every agency has a PIO, and many of them come from the public relations side of the communications field which is, I won’t say dominated by, but populated with a certain share of what I call “schoolmarm” types. If there were a masculine form of the word that captured the dowdy, legalistic, church-lady vibe of schoolmarm, I would use it too.
Anyway, these schoolmarms (be they male or female) have no sense of humor. They think everything is important. They hold grudges. They have a sick sense of inflated loyalty to an agency or entity that despite their belief to the contrary, doesn’t reciprocate in-kind. They are inflexible thinkers. They could care less about righting wrongs, the public’s right to know or good governance. The ends justify their means. They can’t negotiate.
So does the advent of the ubiquitous PIO and communications staff at every level of government help, or harm transparency? I can argue both sides of that coin. And let me also say that probably, oh, 80% of the PIOs and communications staff workers with whom I deal are just dandy. Just as is the case in any other profession, it doesn’t take too many schoolmarms to ruin recess.
One interesting example are the stories we heard Saturday from KOMO’s Traci Vedder who talks about the communications staff at WSDOT during her ongoing investigation of the leaks (she’s kind enough to indulge WSDOT by calling it “weeping”) in the cement-cast pontoons for use under the new 520 floating bridge. Her documents make it possible to clearly sense the corrupt culture of the entire organization as it attempts to cover up, and then justify poor performance – all via email. Several of the emails Vedder shared clearly indicated that the agency would have had no problem with the idea of “shooting the messenger.” Let’s hope meaningful change is underway.
On the flip side though, I have to tell you, a smart PIO sees public records requests as intelligence. If I am monitoring the media for a client or an agency, as the PIO, I want to see a summary of every records request. I guess I would have to file a public records request to see the records requests.
The point being that it’s not hard to get a feel for what detractors, or investigative journalists are up to by looking at the records requests.
In Vedder’s case, the WSDOT staff got the bright idea of doing what I call a “shoot down” of the story. Instead of letting KOMO break the news about leaky, sorry, weeping, pontoons, WSDOT made the requested video records available to all in the hopes of turning an investigative blowout into a routine daily story watered-down by its appearance on every other outlet. That would have been a good idea – except Vedder caught them editing the video in such a way as to further illuminate the agency’s effort to deflect and cover up. While the other guys ran video as some sort of handout b-roll, Vedder was able to do another stinging story on the agency’s continuing propensity for cover up. The too-tight buns in the hairdos of the agency’s schoolmarms must have just about reached critical mass.
Listen, modern public relations practitioners abhor this kind of behavior on paper. And yet we keep seeing blatant examples of it at very high levels. A good PIO or PR consultant will always have work – much to my continued surprise here in 2013. The question usually is whether management will listen to him or her if he or she is NOT of the schoolmarm persuasion.
So the point of all this is that the PIO/schoolmarm problem results in over requesting. More than once I have requested the records I wanted, and then some records I didn’t want in an attempt to throw the schoolmarms off my scent. I was doing this before this kind of surveillance was de rigueur, not because I was so smart, but because I had a tendency to over think things even in 1994. Since then, I think most PIOs are routinely scouring the public records requests if they have any level of competence at all.
The problem is that this spy-versus-spy gamesmanship falls squarely in the record-keeper’s lap who as a result, ends up doing a far larger search-and-destroy, I mean search-and-distribute, job than is truly necessary. These poor folks will also be instantly accused of a cover up if either side feels they aren’t getting the straight skinny.
So over-requesting is a problem, even among the well meaning.
Petabytes and petabytes of problems
Another problem is coming up with the money and staff to collect, store, digitize, record, organize, search, retrieve, copy and distribute public records.
The amount of “vital” data generated by our efficient government is mind-numbing. It will take decades to get it all digitized and organized, and let’s face it, a lot of older records will never be recovered.
So the record-keepers have their share of problems too. Not only are they trying to drink out of the proverbial fire hose as their agency generates records at breakneck speed on a daily basis, they’re also trying to mange old data, and service pending records requests AND perform the basic function of their office. No wonder many dislike the gadflies, and the non-gadflies, alike.
There are two basic approaches for record’s keepers in my estimation.
If you’re a schoolmarm or just a good ‘ole boy/girl who doesn’t think the people need to stick their damned noses into your government business, keep the records-related resources to a minimum and let time and volume work against requesters.
If you are an open government advocate, transparent by nature with a clean conscience, or you have just given up fighting history, you can throw your hands up into the air and publish everything in plain view not worrying about who wants a record or why they might want it. If you’re colleagues are dumb enough to write about their fraud in an email, or get popped for a DUI, or go to Mexico on the county’s credit card, that’s their darned problem. Put it all on the web and let society sort it out.
I vote for the latter of course, and so do public officials like Pierce County Auditor Julie Anderson who says government underlings need to stop caring about the requester’s personality and motives because, “It leads to paranoia.” Anderson says she directs her people to strike the difficult balance between, “the appearance of trying to guide the search” and helping requesters get what they really need. She says, “It takes intuition and empathy” to do it right.
Jim Doherty with the Municipal Research and Services Center says, “We get a lot of calls from frazzled clerks” especially in the smaller jurisdictions.
Some entities, like Pasco and Kirkland are working to establish a pecking order, or triage, public records requests which in Kirkland’s case may include an online tracking tool for the requesters in the interest of transparency.
Grant County is a small organization, but they have hired a more than full time person dedicated to servicing the public’s right to know. Melissa McKnight figures she has about 20 years worth of records management to do before the database is complete, searchable and public.
Each agency, and each official, views their open government responsibilities differently. Seattle City Attorney Pete Holmes, another open government advocate, actually does “road shows” for agency staffers to hip them to the benefits, and requirements, of transparency. Holmes says government should just, “Get used to it” when it comes to the issues surrounding transparency and assume that the retention of records, including meta data and other electronic documents, is automatic.
Support Sunshine
So it’s the overwhelming volume of records and, in many cases, frivolous requests where the cities, counties and other agencies find their footing to try to legislate a reduction in your right to know.
It all adds up to getting involved as a voter and a taxpayer to advocate for open records.
No, you’re probably not going to march down the city clerk’s office and ask for records – but the paper you read will. The gadfly looking at how money is spent will. The attorney wondering who is affected by a mistake or an oversight will – and ultimately, that’s in YOUR best interest.
So pat a reporter on the back, and tell your legislator and the next government official you see that open records, open meetings, open courts and transparent government are important to you.
Happy Sunshine week. Looks like it’s gonna’ be a wet one.
