Politics & Government

New agency for open records?

A state task force on open records issues has agreed unanimously that the Legislature should create a new Office of Open Records that can sort out public-records disputes.

The idea is to copy what states such as Pennsylvania and Connecticut have done. Both states give citizens a place they can go – outside of court and costly legal actions – when their requests for documents are rejected or ignored by state agencies, cities, counties or other jurisdictions of government.

“I think somebody will introduce a bill and make it a reality. I don’t know what the Legislature will do because of the budget woes. But it’s possible this would save money for some entities, because they would have some place to go” to resolve disputes, House Majority Leader Lynn Kessler, D-Hoquiam, said.

Kessler was one of nearly two- dozen people serving on the task force created by Republican Attorney General Rob McKenna and Democratic state Auditor Brian Sonntag. It met Monday morning in Olympia for a second time, adopting its recommendations.

Many obstacles lie in the way of getting an agency approved by lawmakers. The biggest is the unknown cost of a new agency at a time Gov. Chris Gregoire is expected to also seek the elimination of several boards and commissions. Washington also faces a budget shortfall of up to $1.7 billion in January and the outlook is not great in following years.

Pennsylvania’s Office of Open Records began in January with 10 employees, a half-dozen of them lawyers, and a budget of about $1.2 million – all to handle more than 800 cases filed this year.

“I view this as a long-term goal, keeping in mind our economy is not that great and revenues are declining,” said Tim Ford, the AG’s open-government ombudsman who chaired Monday’s meeting.

One participant, attorney Craig Ritchie, cautioned that cities and counties would not ultimately support having a new agency if it is not set up with incentives that reduce disclosure and legal costs for government agencies.

Ford said he plans to send a final legislative request to task force members for review. Then he’ll look to Kessler and three other legislators on the task force to see if they will jointly sponsor a bill.

Task force members were unanimous in wanting to send their report and recommendations to the Legislature, but they sharply disagreed on a couple of issues.

Ten members favor an agency led by a single director who could hire administrative hearings officers to formally review disputes, and who also could be accountable to an appointive power, like the governor.

But five members do not like that and favor a commission style of agency like the state Public Disclosure Commission, which has citizen appointees that write rules as well as enforce the law with penalties.

Another disagreement is whether to make appeals to the new open records agency mandatory before a citizen or group can go to the local superior court to challenge an agency’s failure to turn over records. By a 13-3 margin, the group favors making it optional, but a majority also wanted financial incentives for staying out of court.

The panelists agreed that if a person were denied records by an agency and won relief in court without first going to the open records agency, a judge should then have discretion whether to impose any fines; the law today requires penalties that range from $5 to $100 a day for each records violation, which can be very costly when hundreds of records are denied.

Several open records issues are likely to go to the Legislature in January. One is a request by the attorney general’s “Sunshine Committee” to place the Legislature and its correspondence, including e-mails, clearly under the jurisdiction of the Public Records Act. The Sunshine Committee is reviewing more than 300 exemptions in disclosure law, and its recommendation last month was not unanimous, which dims its prospects for passage.

Toby Nixon, president of the Washington Coalition for Open Government, also plans to seek legislation to make court administrative records subject to the public disclosure act. Court-case files are available to the public under other rules, but a recent state Supreme Court ruling on a case involving Federal Way Municipal Court reaffirmed that administrative records do not have to be disclosed under the records act.

Rep. Kessler said she wants to push another bill that deals with harassing records requests. Her bill failed this year, but lawmakers did approve a more narrowly drawn bill that gave courts the ability to block the release of documents sought by inmates in certain cases – if the request is for intimidation or if the records release threatens the security of facilities, staff, inmates or families, or assists a criminal action, according to Tim Lang, a senior assistant attorney general who advises the Department of Corrections.

Brad Shannon: 360-753-1688 bshannon@theolympian.com.

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