The public’s ability to know about its government is fading in Washington, despite the state’s landmark Public Records Act.
That’s happening for several reasons. One is because there are fewer watchdogs fighting for transparency, as the local-news industry declines.
Another is the rise of a political culture that cares more about controlling the narrative, and giving cover to special interests, than keeping citizens fully informed.
The most mundane and easily fixed reason, though, is that rules for implementing the Public Records Act are vaguely written.
That’s providing wiggle room for government agencies to delay records requests for weeks, months and sometimes years.
Those delays effectively deny the public of the prompt access to which it’s entitled.
A coalition of 17 media outlets, organized by The Seattle Times, is asking Washington Attorney General Bob Ferguson to correct this by revising the state’s Model Public Records Act Rules.
“Without insight into what government is doing how is the public supposed to know, first of all, what is happening, and secondly, why and who is calling those shots, and thirdly, who to elect into or out of office?” said Times Executive Editor Michele Matassa Flores, who organized the coalition. “Especially during an election season, I felt like this was a good time to bring this issue to the forefront.”
The rules aren’t binding but provide guidance to state and local governments and courts.
Requested changes mostly add terms like “promptly,” since the underlying law requires promptness but the rules are vague about urgency.
Some of the suggestions should also help agencies more efficiently handle records requests and clear backlogs. They clarify that simple requests can be quickly fulfilled without waiting for complex requests in the queue.
“Resources are tight for everybody, budgets are strained, we deal with that ourselves and we’re sympathetic to that,” Matassa Flores said, “so we’re not just filing requests willy-nilly and casting fishing expeditions.”
The public can petition agencies to change rules. If the agency agrees, it drafts a proposal filed with the Code Reviser’s Office.
Ferguson’s office agreed to start a rule-making process on Oct. 4 and is soliciting input. But his office told me the work is unlikely to conclude before he leaves office at the end of the year.
Ferguson, who is running for governor, has told me in several interviews that he strongly supports transparency and appreciates the role of the press in keeping the public informed.
He wasn’t available to comment on the rule-making proposal. But his spokesperson, Brionna Aho, said he “agrees with the letter” that Deputy Attorney General Christina Beusch sent to The Seattle Times on Oct. 4 and emphasized this sentence:
“We have reviewed the proposed changes and determined that agencies, The News Media, and the public could benefit from the revision of certain rules and additional guidance.”
Some transparency advocates believe that while Ferguson may support the changes, he’s punting by not making them before his term ends.
That would avoid potentially ruffling feathers of government agencies, municipal associations and public-employee unions that have pushed back on transparency rules.
“I was disappointed that the attorney general didn’t simply adopt what the media recommended and instead opened a process that could go any number of different directions,” said Mike Fancher, president of the Washington Coalition for Open Government and a former Times executive editor.
“I’m confident the outcome could be good but it felt like it was buying time to not make a commitment and that’s unfortunate.”
Kathy George, an attorney who helped draft the media proposal along with Times investigations editor Jonathan Martin, said it is “somewhat encouraging” that Ferguson’s office accepted the proposal and initiated the process of revising the rules.
“He got the word ‘prompt’ in there,” she said. “It’s in the law but it’s not in the model rules and it’s not being followed.”
I asked candidates to succeed Ferguson as attorney general for their position on the rule-making and didn’t get answers before deadline.
Democrat Nick Brown has served on the state’s public-records Sunshine Committee and Seattle’s Ethics and Elections Commission that’s involved with campaign disclosure. A spokesperson for Republican Pete Serrano asked for details of the rule-making but did not respond further.
I urge voters to press all the candidates, plus Republican candidate for governor Dave Reichert, to do what they can to improve disclosure rules so the public can promptly learn what its government is doing.
Really, I wish every candidate had to sign an acknowledgment that they’ve read and agree with the construction of the Public Records Act:
“The people of this state do not yield their sovereignty to the agencies that serve them. 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. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”
Despite the clear intent of that law, passed by a citizens’ initiative in 1972, the state whittled away access in recent years.
Exemptions to the law now appear in more than 650 statutes and subsections of the Revised Code of Washington, with 40% of the exemption provisions added within the last 11 years, WashCOG wrote in a February report.
The report noted that delays in providing public records sharply increased over the last five years. A state survey found agencies took nearly 23 days to provide records, on average, in 2022, up from 15 days in 2019.
The rule-making request includes specific examples. In April, the Seattle Police Department estimated it would take 10 months to provide a single, straightforward record sought by a Times reporter.
The University of Washington told a reporter in April it would take 19 months to receive the first installment of records from a closed investigation.
Then in May, the Seattle School District “extended the time estimate for a single record requested by a Times reporter from one month to two months because the district’s sole records officer was going on paternity leave and a second records officer had been eliminated by budget cuts.”
Better rules won’t just benefit the media. Most records requests are now submitted by individuals, according to the state survey. In 2022 individuals made 36% of requests and 2% came from the media. Government, law firms and other entities made more requests.
In this case, the press is using its scarce resources to help government improve and increase transparency for all Washingtonians.
Brier Dudley on Twitter: @BrierDudley is editor of The Seattle Times Save the Free Press Initiative. Its weekly newsletter: https://st.news/FreePressNewsletter. Reach him at bdudley@seattletimes.com.
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