Open-records disclosure in spotlight

Settling of disputes: State attorney general, auditor consider how board could best handle cases

October 6, 2009 

The Washington state attorney general and state auditor are considering ways that a public-funded open-records board or commission could referee and decide disputes quickly in open-records and open-meetings cases.

“The idea is to keep these complaints over records disclosure out of court, which is often the only recourse for citizens who find their requests are denied. The court provides a remedy, but it’s not always an adequate remedy; it’s not an efficient remedy,’’ Tim Ford, open-records ombudsman for Attorney General Rob McKenna, said Monday as a task force on open government began its work.

A legislative proposal died this year that might have given records-law jurisdiction to the state’s campaign- finance agency, the Public Disclosure Commission, or to a new agency. The idea — and even a scaled back idea of a legislative study — died almost as soon as it was born, and partly because of money concerns.

So Attorney General McKenna and Auditor Brian Sonntag launched their task force Monday as a way to keep alive the debate on how lawmakers proceed next year. Ford said he hopes to bring the task force members together for a second meeting on Nov. 2 and to craft some kind of recommendation for lawmakers to consider in January.

McKenna said a faster mechanism to resolving disputes could help everyone, and Ford noted the 1997 case of Seattle hotelier Armen Yousoufian, who asked King County for records related to the Kingdome prior to a public vote. King County’s bill for penalties and lawyer fees tab is approaching $425,000, and the case is still in court over how much the county should pay.

In a more recent case that cost Mason County close to $150,000, the county was fined $100 a day for failing to turn over records to Harold Carey.

One big question for policymakers is what kind of enforcement body to create. One idea is a special Office of Open Records like what Pennsylvania started in January. That office has the power to write rules, and it must decide 30 days after getting a records-requester’s appeal whether documents should have been disclosed or denied. Another idea is Connecticut’s Freedom of Information Commission that has power to issue fines.

Pennsylvania opened its Office of Open Records this year with 10 employees, most of them lawyers, and a budget of about $1.2 million, according to executive director Terry Mutchler.

State and local Pennsylvania agencies have five days to reply to requests and 30 days to give up records. Requesters can then follow up with an appeal to the Office of Open Records, which issues a binding decision within 30 days. The office also has duties for educating the public and the power to issue civil penalties of $1,500; courts can impose fines of up to $500 for each day the court deems a record was improperly withheld.

Mutchler is appointed by the governor to a six-year term and said she can be removed only for legal cause. “For it to work, there really has to be the freedom for that agency to act independently to interpret the law,’’ she said.

So far, 70 of Pennsylvania’s 840 cases this year have gone to court. Fewer than 15 of the cases were filed by news media; the rest were by citizens. Mutchler’s staff tended to rule in favor of the agency, denying records in 267 cases and ordering their release in 165 so far.

The Washington task force includes representatives from the Legislature, government, unions, lawyers and citizen activists. Advocates for better disclosure on the panel agreed there must be a better way, and some form of commission or review office could fit the bill.

“This is a conversation we should have had 30 years ago,” said Graham Johnson, former director of the state Public Disclosure Commission, who testified in favor of a bill early this year and also attended the task force meeting. “We could have avoided a lot of confusion and litigation we have seen over the years.’’

A few members of the task force had concerns about how far a board might go or how it might be paid for.

Anna Jancewicz of Teamsters Local 117, who represents prison staff and has battled disclosure of information about employees sought by prisoners, wants employees to be able to protect their home addresses from disclosure and have a third-party right to appeal or fight disclosure.

One funding approach is the state general fund; another is a recording fee for documents at county auditor offices.

Some lawmakers on the task force are hopeful of seeing action. Rep. Joel Kretz, House Republican deputy leader from Wauconda, said he’s thinks a bill can pass in the next year or two, as budget woes soften. Kretz wants any board or commission to have jurisdiction over open- records and open-meetings laws.

House Majority Leader Lynn Kessler, D-Hoquiam, said the idea might pick up support as governments see an opportunity to reduce the chance of runaway penalties that occur when records-law violations become drawn out.

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