Public records must be open

• Published August 21, 2007

Thurston County Superior Court Judge Anne Hirsch is new to the bench. Let us hope her inexperience is the reason for her misguided decision recently on an important public records case. If Hirsch's ruling is allowed to stand, it will gut the state's Open Public Records law and limit the amount of information members of the public are able to pry out of the hands of government officials.

The judge has agreed to hold another hearing on the issue Sept. 7. Let's hope attorneys are able to show her the importance of government entities maintaining copies of ALL public records.

At the core of this issue is the Building Industry Association of Washington and its pressure to hold people accountable for submitting false voter registration forms to election officials. As a result of pressure from the BIAW, King County prosecutors recently filed charges against seven individuals, accusing them of filing hundreds of false registration forms.

After learning of the suspected voter registration fraud last fall, BIAW officials submitted requests for public records in Pierce County. Pierce County Auditor Pat McCarthy balked, saying some of the documents, specifically e-mails, had been deleted. McCarthy was relying on legal advice from a Pierce County deputy prosecuting attorney who said the county is allowed to delete e-mail public records at will. The prosecutor said the auditor has no duty to retain such records.

The builders challenged the county in court, claiming that destruction of records was a violation of Public Records Act. Tom McCabe, executive vice president of the BIAW, warned that officials could simply destroy key e-mails to avoid public disclosure.

Unfortunately, Judge Hirsch sided with the county in her initial ruling.

McCabe has asked the judge to reconsider and take into account a state law that took effect July 22 — two days after Hirsch's ruling. It requires apparent conflicts between statutes to be resolved in favor of the records-disclosure law interpretation. That could redefine the lost e-mails as public records.

State Auditor Brian Sonntag has weighed in on the side of builders, saying the destruction of e-mails by government workers is not acceptable.

In a sworn statement, Sonntag said, "In performing its audits, the state Auditor's Office relies on documents in all forms — paper and electronic — to do its work. For example, we routinely examine the minutes of public meetings, review government financial records and government contracts and look at e-mails. In ... order to conduct audits, the auditor may need to review every type of document a government prepares, owns, uses or restrains. These documents are critical to our work, and therefore, it is vital that they be retained in accordance with state law and with the state records retention schedule. Our work would become difficult, and in some cases impossible, if records were destroyed in violation of retention schedules. ... Additionally, destruction of records would substantially hinder our fraud and whistle-blower investigations."

The keys here are whether e-mails are public records and whether they must be retained or can be destroyed at will. The ramifications of Judge Hirsch's ruling are immense because they will determine whether public officials can avoid embarrassing disclosure of documents simply by destroying them.

That would not be in the public's interest and it flies in the face of the state's Open Public Records Act, which says officials should come down on the side of disclosure over secrecy every time.