Missing public records and "harassing requesters"

January 6, 2014

During the heat of the debate last year on HB 1128 and whether or not government entities should be able to sue citizens to keep from disclosing public records, the Washington Coalition for Open Government (WCOG) sent out a public records request to determine the extent of any problem facing local governments concerning compliance with the people's right to know.

That WCOG records request resulted in this ultimate public records response fail from the then Mayor of Coulee Dam:

Dear Allison,
My clerk has received a public records request from you and I have a problem with that. First of all, are you with the state of Washington or are you a non profit outfit? I know why you are doing this and HE won't get help this way. I am fed up with this kind of harassment and my clerk has a lot of work on her plate and can't take the time to play silly games. I will be in contact with my State Senator about this as soon as I get done here. Could you give me a list of all the other towns that have received a letter from you.....that is my records request.
Mayor, Quincy Snow
Coulee Dam, WA

The "HE" the former Mayor was referring to? The newly elected Mayor Greg Wilder.

It turns out there was a history of public records games being played in Coulee Dam that continued up to the time Mayor Wilder took office. According to a January 2 letter Mayor Wilder sent to the Douglas County Sheriff:

I have just been seated as the new Mayor for Coulee Dam and discovered that all of my predecessor’s public-record emails have been removed from the Town’s email server and the Town’s computer assigned to the mayor’s office. The nature of Coulee Dam’s email server pushes the emails to the sending/receiving computer for storage and none of them are generally left on the service-provider’s system(s).

I arrived for my first day today… January 2nd, 2014.  To my surprise, the prior Mayor had purchased a new computer for the mayor’s office – so new, in fact, that there were no records or files on it of any kind!  At first blush, not a real problem since the old computer and its hard-drive must still be around – you would think stored somewhere pending a surplus property declaration and subsequent disposal.  The hard-drive of the old computer will certainly hold the public records I need and which are required to be retained by statute.  After a bit of looking and searching our police chief (Pat Collins) informed me that it had just 'disappeared' not long ago from one of his department’s locked storage rooms.  Even through the room contained more and better 'electronics,' nothing else was taken or lost – just the mayor’s old computer!

The Mayor's letter goes on to request an investigation pointing out:

RCW 40.16.010 (Injury to public record) makes it unlawful to remove, alter, destroy, conceal, or obliterate documents deposited in a public office, or with any public officer under the penalties set forth as a class 'C' felony.  In the end, the records were destroyed or removed from the Town government by the 'disappearance' of the computer.  Two things were lost, concealed, or stolen… the electronic records themselves, AND the more tangible computer.  Additionally, as is also the case here, RCW 42.56.100, requires the preservation of a public record if it exists at the time the request for that record was made.  To wit; '… may not destroy or erase the record until the request is resolved.'

While (hopefully) this experience in Coulee Dam is not the norm across Washington it does underscore the danger of allowing government officials to decide if someone is a "harassing requester" and deny access to public records. It also shows the need for the Attorney General's proposed bills (HB 2121 and SB 5964) to require "training public officials and employees regarding public records, records management, and open public meetings requirements."

This example also shows why HB 1128 was such a concern to advocates for open government and why House Speaker Frank Chopp is being awarded WCOG's Ballard/Thompson Award for his role in keeping that proposal from moving forward. According to WCOG's press release today announcing the award:

House Speaker Frank Chopp will receive the Washington Coalition for Open Government’s Ballard/Thompson Award during a reception in Olympia on Tuesday, January 28.

The event will begin at 5:30 p.m. in the Columbia Room in the state Legislative Building. Chopp, a Seattle Democrat, will be recognized for defending open government during the 2013 session by prevent House Bill 1128 from coming to the floor for a vote. The bill would have allowed public agencies to deny and sue records requesters deemed to be 'harassing' an agency.

The Coalition viewed HB 1128, strongly supported by cities, counties and ports and unanimously passed by the House Local Government Committee, as potentially one of the most damaging setbacks to government transparency and accountability in many years.

So what should be the next steps for the Legislature concerning the people's right to know? 

Along with moving forward with remote testimony options for citizens and executive privilege reforms, lawmakers should also heed the recommendations of the public records report they requested.