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
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