State groups fear bills may hinder records requests

Almost 40 years after Washington voters passed the Public Records Act, state transparency groups fear lawmakers are chipping away at the provisions of the law.

Several bills introduced in the 2011 session aimed to clarify or narrow the scope of the act, a move Toby Nixon of the Washington Coalition for Open Government sees as unnecessary and dangerous.

Nixon, president of the board of the coalition and a former state representative, said some local governments are extremely concerned by a handful of community members who make public records requests on a regular basis. Their reaction, he said, is to propose "onerous" charges for the labor and search time.

Bills that would have allowed agencies to charge for records searches and required agencies to keep track of how much records searches cost died in committee.

The law requires agencies to respond to records requests within five business days, either granting them, denying them, or giving an estimated time frame on when records will be processed. If an agency fails to deliver records or to properly notify the requester of a claim to exemption, the requester may sue within a year of the agency's response.

A bill passed unanimously by the Senate attempts to clarify the statute of limitations after a case last year in which a requester filed a lawsuit two years after requesting records.

The lawsuit was possible because of the court's literal interpretation of existing law, which says the one-year limit starts to run after the notifications are made or the last installment of records is produced.

In the 2010 case, the agency had provided all the records in one go, and the court said the last-installment rule didn't apply. When agencies provide records all at once, if current law is interpreted literally, there is no statute of limitations.

Attorney General Rob McKenna requested lthe change. Deputy Attorney General Christina Beusch says that by specifically labeling the last contact from the agency in question - whether it's a claim of exemption, the last installment of records, or all requested records at once - as the date on which the one-year limit begins, both requesters and agencies will benefit.

Requesters get the benefit of the "longest time frame," and the clear knowledge of when that time frame starts. Agencies have the security of not having to worry that stale requests that have been abandoned by the requester can't come back to haunt them after the year is up.

For Nixon, however, the measure effectively shortens the time frame during which denied requesters can file a lawsuit.

"What it really does is enable agencies to 'run out the clock' by ignoring the statute of limitations for PRA requests, so that requesters have less time (or maybe no time at all) to file a lawsuit," Nixon explained.

In the House, lawmakers voted to reduce the minimum daily penalty courts can impose on an agency that fails to respond from $5 down to nothing.

Supporters say this allows courts to decide that a request went unfilled by mistake. The proposal would maintain the $100 maximum penalty as a tool to punish agencies that are deliberately uncooperative.

"Let's give the judge a little bit more judgment," said Rep. Mark Miloscia, D-Federal Way, the bill's sponsor.

For Nixon, however, the reduction will make agencies more aggressive in denying records when they think they can beat the requester in court and escape penalties.

Instead of seeing these bills go into effect, the coalition wants to teach local agencies how to deal with frequent requestors without damaging the Public Records Act for everyone.

"The possibility that the Legislature could in a knee-jerk fashion react to these demands from agencies for limitations for the Public Records Act is the biggest threat to access in the state of Washington," Nixon said.

Another serious concern for open-government groups is the ease with which lawmakers can sidestep the timely notification requirements for public hearings.

Both chambers have rules stipulating that committees must give five days' notice before a bill is to receive a public hearing. However, a majority of the committee members present can vote to waive that rule.

Committees use this mechanism with increasing frequency as cutoff deadlines approach.

Jason Mercier of the Washington Policy Center, a transparency watchdog group, said that in a few extreme cases, bills have been introduced, heard in committee and acted on in executive session, all in the same day.

Even a day's notice isn't much help, he said, to people who live far from Olympia.

"What's the purpose of a public hearing? Not to allow the agencies or special interests or lobbyists to provide their input; it's so that the general taxpayer has the opportunity to come and be heard," Mercier said.

At a recent Environment, Water and Energy committee hearing, Republican Sen. Jim Honeyford, R-Sunnyside, walked out after objecting several times that adequate notice had not been given on the bills being heard.

"I don't know how else you express your displeasure," said Honeyford, the ranking minority member of the committee. "It really bothered me that we were pushing those things out without adequate public participation and without adequate committee members' participation."

A Senate bill that would have required specific notice and waiting periods before legislative action never made it out of committee.

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The statute of limitations bill is SB 5022 and now moves to the House. The penalty fee bill is HB 1899 and advances to the Senate. The public notification bill was SB 5419.

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Online: http://www.leg.wa.gov