Public Records Requests - Revised Law - Washington State

Question: What are your feelings on the new changes to Chapter 42.17 RCW Disclosure – Campaign – Finances – Lobbying – Records?

Answer: Thank you, thank you, thank you for this question.

This article, written specifically because of a change of a law in the State of Washington, is probably something that every records manager with responsibility for public disclosure requests in the United States can relate to and also of interest to those of us in the private sector that care about our tax dollars going down the drain. I have deep sympathy for those of you working in the public sector who is being burdened with processing public records requests without the funds to manage the program.

On the 10th of October of this year I had the opportunity to attend an Open Government Forum held at the Tacoma News Tribune Baker Conference Room sponsored by the State Attorney General’s Office for the following purpose:

Gather input on best practices for the public disclosure act model rules.
Educate the public on the new public disclosure act law … and how it helps government officials more effectively comply with requests in a timely manner.

The forum was chaired by the State Attorney General. The meeting opened and he acknowledged a state senator (Senator Rosa Franklin) who voted for the changes to the law; the state auditor (Brian Sonntag); Greg Overstreet, from the Attorney General Office, who is currently managing this project; then a representative from a local government agency (Barbara Werelius, Tacoma Public Utilities and member of the Puget Sound Chapter of ARMA) who explained to the audience what and how she handles public disclosure requests; then the managing editor from the Tacoma News Tribune who got a great laugh when he said he was going back to his office to prepare another request for public records; I spoke and mentioned that as a taxpayer I found it extremely upsetting at a time when public agencies are working with limited budgets the State Legislature had written another unfunded mandate for local agencies with the recent changes to the public disclosure law that requires each agency have an assigned Public Records Officer responsible for public records requests. Other interested people spoke on their valid issues where they were stone-walled by local and state government when they requested public records. At least one person, while totally within his rights to request records, was abusing the public disclosure system by admitting to the submittal of 150 requests over a 5 year period and after collecting the information from the government agency, filed/placed the disk on a shelf because he didn’t have the software to read it; and finally a government worker who declined to identify which state agency she worked for or her name in fear of retribution who defended her work processing public disclosure requests but was frustrated by workload that was actually supposed to be a small percentage of her job responsibilities.

The cost borne by the requestor is limited to a reasonable fee (of .15 cents per page) to cover the cost of copies and use of agency equipment. The new law allows the agency to collect a deposit fee (10% ) for the anticipated cost of documents to be copied. Note: there is absolutely no charge for the labor of the employee conducting the search and retrieval of the documents. The law does not address cost of producing electronic documents and in particular, e-mail. I guess they are free unless the requestor asks for a paper copy or they only furnish the emails in paper format.

In addition, because of a recent court case the Legislature, in their ultimate wisdom, changed the law to state: “the agency shall not deny a request for identifiable public records solely based on the basis that the request is overbroad”.

I have two problems with the law as it stands.

1. The law is changed to make the Public Records Officer responsible for public disclosure requests. Previously it made the Public Records Officer the coordinator for public records requests. I am not a lawyer, but if you are responsible, that would mean if you did not comply you will be held legally liable. For some reason this appears to be a change that removes the responsibility from the person with the authority and places it on someone who does not have the ability to insure compliance.

For example, the Attorney General of the State of Washington has designated an individual who is filling an authorized funded position which includes duties as the agency’s Public Records Officer. My guess is that this person does not work under the Attorney General, but under a director. I doubt she has the authority to direct and make changes to insure compliance but she has responsibility without authority. My guess this is probably true in any agency, local or state, in any state within the United States. It is, in my opinion, a bad law and unfair on the person filling the position.

2. The cost of providing public records needs to be addressed to insure that government agencies are not being burdened with of originating in the State legislature. The State of Washington has a law that precludes unfunded mandates as follows:

The people of Washington State have established a restriction on the financial burdens placed on local government by state directives. The fundamental purpose of the prohibition on what have been popularly referred to as “unfunded mandates” is expressed in RCW 43.135.010(4): “It is therefore the intent of this chapter to: . . . (c) Assure that the state does not impose responsibility on local governments for new programs or increased levels of service under existing programs unless the costs thereof are paid by the state;. . . .” This general intent has been implemented through specific statutory prohibition in RCW 43.135.060(1) which provides:
After July 1, 1995, the legislature shall not impose responsibility for new programs or increased levels of service under existing programs on any political subdivision of the state unless the subdivision is fully reimbursed by specific appropriation by the state for the cost of the new programs or increases in service levels. Reimbursement by the state may be made by: (a) A specific appropriation; or (b) increases in state distributions of revenue to political subdivisions occurring after January 1, 1998.

Apparently it is another law that no one pays attention to. But as a taxpayer I have serious concerns on the cost and potential abuse of the program to the detriment of the public. I image the costs problem could apply to any state in the union. My guess is that few local government agencies in any state in the union have a dedicated Public Records Officer on their payroll. If they have a Public Records Officer or Records Manager, it may be part of their duties, but probably only suppose to be a small part of their duties that has grown and devoured their primary duties. Additionally, the cost of the man hours required to search and retrieval of the documents are not being recovered by the agency and their primary duties are probably not being accomplished. I recommended at the meeting that they do a study of the requests by cities within the state to determine the actual cost of the program.

One of the things that I have noted in news articles on the records management listserv is the number of apparent requests for public disclosure from newspapers. I have noticed that many newspaper and colleges groups had sent teams out to visit locations within their state to see who are complying with public disclosure laws. I applaud their effort to make the public aware of the short comings of their state laws in respect to compliance within their states. I believe it has shown, as was some of the testimony at the forum, that there is an apparent need to insure that the public agencies are aware of the requirements of the laws. However, in our state, it appears based on the forum above; they should start at the state level to insure compliance and provide the training to insure all agencies are aware of their legal responsibilities. But, and a big but, the proposal to establish best practices for public disclosure model act, doesn’t appear to address my concerns as follows:
· The cost is still borne on the local agency in violation of RCW 43.135.010(4).
· The proposed model rules are voluntary. If they aren’t following the law now, the new rules are a waste of time since there are no serious consequences for not complying.
· If the state agency doesn’t comply with a request, the requestor has to sue the agency at his expense and hope to get his legal fees paid by the agency.
· There are no studies to reflect the actual cost to the agencies.
·
On the positive side, at least the local government agencies will have something that they can follow to meet their legal obligations to comply with public record disclosures. I also hope that the appearance of the state auditor at this meeting means their office will review compliance of the act as part of their performance audits of the state and local agencies.

While our local paper has the absolute right to request public records I wonder what the actual cost has been to the taxpayer to search and retrieve documents for a private company. For example, in recent Sunday paper, the Tacoma News Tribune had I believe 3 or 4 pages dedicated to a very sad chapter in the long string of problems the city of Tacoma had over the past couple of years. The information had to be requested and retrieved by city staff. A large majority of the information was in email, which the Business Information Services (BIS) group had to dedicate valuable staff to search and retrieve the documents for this project. At the same time, the BIS system was going through a major overhaul and cost overruns that would run a small underdeveloped country the city manager was looking at options to reduce staff, except in the BIS area.

I would recommend individuals and agencies to contact Greg Overstreet (grego@atg.wa.gov) to provide input on problems they have with the revised law and the impact on their ability to sustain the normal duties of the position due to the increased workload.



Robert W. Dalton, CRM
daltonconsulting@hotmail.com

Just Starting Out in the Field

"Do you have any recommendations for someone just starting out in the field”

In November 2004 I wrote a short article on this subject after talking with new ARMA chapter members or reviewing messages on the ARMA ListServ. In that article I listed three books that could help a newcomer to the profession and directed the reader to the ARMA bookstore website (http://www.arma.org/bookstore/index.cfm) where they could purchase the books. The books represent just three of many excellent books on records management that can be purchased.

‘Professional Records and Information Management’, 2d ed., Author: Jeffrey R. Stewart and Nancy M. Melesco. This is the book is used by a local community college in their Filing and Database Management Class. It provides an excellent overview for those new to records and information management. There are twelve chapters, covering a very broad scope of information management, from basic filing systems through electronic systems and media. It is limited to an overview of the subjects discussed, with the exception of the filing rules. It also includes a 3 ½” disk covering the filing rules.

‘Organize Your Office: A Small Business Survival Guide to Managing Records’, Author: Teri Mark, CRM. Although this book is described as a survival guide in teaching small business owners with fewer than 20 employees, home-based businesses, and the self-employed the principles and information provided on organizing business records may be applied to both public and the private sector. This is an easy read and written in non-technical terms.

‘Sample Forms for Archival and Records Management Programs’, published by ARMA International and Society of American Archivists. For those in public or private sector, this is a great resource that provides some excellent sample forms and polices that may be used and/or customized to meet your requirements. The book comes with camera-ready originals that can be photocopied and a CD with the forms in Microsoft Word and PDF formats.

I included these publications as they are currently in our Chapter’s library. If your ARMA chapter has a library, check out these books; they may help in your quest for knowledge in our field.

What other resources does ARMA offer to someone just entering the profession? The ARMA bookstore is an excellent resource, as well as the for-a-fee on-line training modules found at (http://www.arma.org/learningcenter/onlinecourses/index.cfm). A newcomer may want to check out the on-line RIM 101 course which is specifically designed with the new member in mind. The on-line course and text book provides an introduction to the field of records and information management (RIM).

Another source of training is your local ARMA chapter. My chapter, the Puget Sound Chapter of ARMA, tries to balance our monthly programs and/or workshops to include training in basic records management. Your chapter programs are probably an excellent resource for the newcomer. Take advantage of these relatively inexpensive educational opportunities. You also get to meet and talk with peers who have experienced and/or are experiencing some of the same issues you have. I believe you will find many professionals in your chapter who are more than willing to share their experiences. My editor below is one of my resources when I have a question or seek wisdom from someone more knowledgeable in a specific area of our field. If she doesn’t know, she knows who does, and shares unselfishly this knowledge if asked.

I personally take advantage of the RIM Listserv on the internet that consists of RIM professionals who, if properly asked, provide some quality guidance. You can sit back and follow the threads of the conversation. Be for warmed that you may get a lot of email traffic depending on the subject. To join, send an email message to: listserv@lists.ufl.edu - leave the subject line blank in the body of the message put subscribe RECMGMT-L

Unfortunately, and it may be my personal view, I do not see ARMA Headquarters providing the basic educational opportunities at their annual conferences and are relying on the local chapters or the fee-based training to fill this need. I attended the Chicago conference (which was excellent) and was surprised at the very limited offerings for someone who is just entering into the profession. I also reviewed the list of topics of proposals for presentations that are currently being solicited for the San Antonio ARMA conference in October 2006. Again I found it lacking in basic records and information management educational sessions. Hopefully, the current ARMA RIM Competency Project will address this need.


Bob Dalton, CRM of Dalton Consulting