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State audit: Public records often more closed than open in Washington

By The Associated Press

10.22.01

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When a woman entered the Grant County Sheriff’s Department and asked for a list of registered sex offenders, a sergeant refused to give her one.

“I have no control over how it will be used,” the sergeant said, giving an excuse that has no basis in law. Either through ignorance or on purpose, the sergeant broke the law by refusing to release a document that the state’s public-records disclosure law says should be available to anyone.

That sergeant was not alone.

An unprecedented statewide audit of local public agencies found dozens of government employees who violated state law by withholding documents that the law says they must release.

Starting June 21, reporters and other staffers from 26 news organizations, posing as ordinary citizens, requested lists of registered sex offenders, reports on crimes, home values, school superintendent contracts and restaurant inspections from agencies in all 39 Washington counties.

The survey was the first of its kind to examine Washington’s Public Records Act, which defines a public record as any document prepared, owned, used or kept by a state or local agency. Such records are presumed to be public, unless specifically exempted from disclosure by law.

Audit results found agencies withheld documents often enough that Washington residents can’t be certain that local government will give them information to which they’re entitled.

That’s a problem, says state Auditor Brian Sonntag, because when any public employee refuses to release information to the public, then that employee has forgotten who the boss is.

“We’re instructed to do the public’s job. It’s their work, their records we’re safeguarding to make available to the public,” Sonntag said. “Government isn’t a private business or a secret club. It belongs to the citizens, and the public has every right to have access to records and participate in their government’s proceedings.”

When the Washington Legislature set landmark “sunshine” public-records and open-meetings laws three decades ago, it declared, “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”

Auditors found no patterns in records denials among large or small agencies or parts of the state. But the findings did show different types of agencies handle records requests in various ways.

Agencies that are supposed to enforce the law were the ones who most often disregarded it.

Police and sheriff’s departments denied requests for information about property crimes at least 55% of the time, while sheriff’s departments refused about 16% of the requests to produce lists of sex offenders. Health departments denied about 8% of the requests for restaurant inspections, while school districts refused to release superintendent contracts about 12% of the time.

County assessor’s offices were the only audited agencies that always released information. Home assessments are frequently requested by real estate agents and others.

The audit also found that while most agencies don’t charge anything for their records, some agencies are making people pay much more than state law allows.

State law says agencies may charge for actual copying costs, an amount that should not exceed 15 cents per page. It also says people should not have to pay to inspect a record or to have someone find it for them.

There appear to be some exceptions: Many court clerks, for example, charge more for documents under a law specific to those agencies, although it’s unclear that the exemption includes the cost of photocopying documents.

About three-quarters of the documents received by the media organizations were provided free. Other documents were obtained for 10 to 15 cents a page. Still others came at a cost of 25 cents to $5 per page, and one one-page document was $10.

And some agencies had additional “research” fees ranging from $8 per search to $50 per hour.

There are many reasons why someone would want records similar to those requested in the audit. A group of residents might need information about area crimes so they can plan a neighborhood watch, or so parents can keep children away from sex offenders by knowing what the offenders look like and where they live.

A restaurant inspection report might be valuable for a couple trying to decide where to plan a wedding reception or for diners trying to avoid a place with frequent health violations. Savvy home buyers can compare the values of nearby homes when negotiating a sale.

And having documents such as a school superintendent’s contract can allow people to watch what their local leaders are doing and spending.

“The bottom line is that people are entitled to pretty much any document that comes to my mind,” said state Attorney General Christine Gregoire.

She said the state’s public-disclosure laws were designed to make Washington’s government one of the most open in the nation, and she was disappointed by the audit’s findings that some agencies were not following them.

Withholding documents builds skepticism, Gregoire said, and makes people believe government is “hiding something.” “When (citizens) are denied unjustly, they feel completely disenfranchised from government,” she said. “They lose trust.”

Gregoire said agencies should err on the side of full disclosure, meaning if they’re in doubt as to whether something should be released, they should release it.

But what often happens is that no one in the agency — or at least no one at the front office — knows anything about public-disclosure laws, Gregoire said. Her office, and the state auditor’s office, have been trying to help teach local government officials how they should treat public records, but turnover in local agencies often brings in new employees unfamiliar with the law.

Marcie McKaig, director of human resources in the Shelton School District, said she knows the law but admitted that some of the district’s new receptionists do not. The school district in Mason County was one of the districts that refused to release its superintendent’s contract.

“I know what the law is, and that’s a public document and it should have been released,” McKaig said. Informing employees about public disclosure laws has not been a top priority, she said, but employees will receive more training about how to handle records requests.

Jefferson County Undersheriff Ken Sukert also promised his staff would get a review of the laws. Sukert, an advocate for releasing details on sex offenders, said he was disappointed to find out someone in his department refused to do so.

A woman in the department’s front office had said sex offender information was “not a public record” and was available only to someone asking about a specific neighbor. Sukert said that was not true.

“It sounds like from what you’re telling me is that we may need to address that very issue (about disclosure) in our policy review,” he said.

Not all officials were as responsive when confronted about their agency’s denial. Some said they just didn’t have enough people or were too busy to comply with the law.

“I’m sure they’re understaffed,” Gregoire said. “And it’s resource-intense and costly. I understand that. But you know what? That’s not an exemption in the law.”

State law says that in releasing the information, agencies are not allowed to ask why the person making the request wants the records or how that person plans to use the information.

If parts of a document are exempt from disclosure, the agency may black out only the information that can be exempted. It cannot withhold the entire document if only certain parts are exempt.

And for each piece of information withheld, the agency must cite the specific exemption of the law that was applied and explain how it was used.

The agency also must respond to each request within five working days.

In many cases, even when agencies ended up releasing the audited information, officials demanded a reason for wanting the records — and some made it clear it had to be a “good enough” reason. For example, a deputy in the Okanogan County sheriff’s office refused to give a woman a list of sex offenders when she first asked for it — that is, until he recognized her.

And many police and sheriff’s departments have forms for people who request crime reports. Those forms ask why they want the information and how they plan to use it. Many requesters walked away after being told they had to be somehow involved in the crime to see the report.

That is simply not true, said Michele Earl-Hubbard, a media lawyer at Davis Wright Tremaine in Seattle. “Crimes are things the public has the right and the need to know about ... so people can protect themselves from becoming victims,” she said.

Law enforcement officials can only withhold information that, if released, would “severely hamper” the investigation or violate a victim’s right to privacy in certain instances, she said.

Police departments cannot withhold an entire crime report if only some of the information on it can be withheld, Earl-Hubbard said. Those portions of the report can be redacted and the remainder released.

State law allows for dozens of exemptions of certain records, including medical records, student performance records, adoption records, materials protected by attorney-client privilege and some commercial and financial information provided to public agencies.

Rowland Thompson, who lobbies Olympia legislators on behalf of media interests, said agencies continue to pressure the Legislature to make more records exempt. Some exemptions are valid, he said, but others have “no right to be in existence.”

“Our scuffles are not with elected officials; they’re with the bureaucracy,” he said. “They’re the ones who get embarrassed, and they’re the ones who try to get this stuff closed.” Although media groups may make the most noise on behalf of public access, both Earl-Hubbard and Thompson said regular citizens also should be willing to stand up for their rights.

“The public-records law is only as strong as the requester wants to make it,” Earl-Hubbard said. “If you go to the police department and make a public-records request and the person turns you down and you leave, nothing is going to change and that agency is going to continue to do what it wants.”

A rigid and firm, “No” from a government official can turn a regular person away without any further argument, Thompson said.

“It stops them cold. They’re intimidated,” he said. “They get the cold stare, and they go away. What are you going to do? Hire a lawyer?”

That’s exactly what Bonnie and Dan Olsen did when King County denied them a document relating to permits for a 45-acre residential development going up near their home.

The Kenmore couple fought for more than two years and won their battle in June, when the state Court of Appeals ruled the county violated public disclosure laws by refusing to release the records.

“We were really angry at the county for ... really not responding to our information request and for the corruption we felt was evident in the permitting process,” Bonnie Olsen said.

State law does help people like the Olsens in fighting public-disclosure battles by requiring agencies that lose such lawsuits to pay all court costs plus a penalty ranging from $5 to $100 for each day the records were withheld.

That provision, Bonnie Olsen said, was the only reason she and her husband agreed to pursue the request in court. She said she hopes her case will provide an example for other regular citizens trying to get information from their local governments.

“You know, we need some sunshine in there to try to keep them honest. We can’t get in there and be in the office and be in the meetings, but we can at least be reading the documents,” she said. “If they’re not ashamed of it, why conceal it?”

Daily newspapers that participated in the project include the Tri-City Herald, the Yakima Herald-Republic, The (Tacoma) News Tribune, The Spokesman-Review, The (Everett) Herald, The (Bremerton) Sun, the Eastside Journal, the Lewiston (Idaho) Morning Tribune, the Moscow-Pullman Daily News, The (Aberdeen) Daily World, the Peninsula Daily News, the Skagit Valley Herald, The (Longview) Daily News, The (Vancouver) Columbian, The Wenatchee World, The Olympian, The (Centralia) Chronicle, the Walla Walla Union-Bulletin, the South County Journal and The Bellingham Herald.

Other participants included the Associated Press and several weekly newspapers, organized by the Washington Newspaper Publishers Association: the Davenport Times, Chinook Observer, The Journal of the San Juan Islands, the Goldendale Sentinel and The Wahkiakum County Eagle.

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