"Sorry About That"

The state’s public records act is again under siege in Olympia, where a House Committee, in an admittedly “backwards fashion,” has voted to weaken the law’s penalty provision.

By Tim Connor

Provided it doesn’t get hit by a bus or a lobbyist, the Washington Public Records Act (PRA) will be forty years old next year. But even it does make it to forty, it’s hard to know how many teeth it will have left.

This year, lobbyists representing the state’s municipalities, counties, school boards and agencies, seem to be making an especially vigorous effort to re-tool the law to make it less punitive and less expensive to administer. Leading the way is the Association of Washington Cities (AWC) which has made revamping the PRA one of its legislative priorities for the 2011 session.

“Some of the 21 bills [dealing with public records] being considered in the Legislature would make major changes to the act,” the Tri-City Herald reported in late February, “such as adding the ability for public agencies to charge requesters for staff time to answer questions, requiring an attempt at addressing issues before a lawsuit can be filed, starting a pilot appeal program and limits on requests made by inmates.”

Perhaps the most ominous threat to the law is HB 1899, a bill that was passed out of the House on March 1st. HB 1899 takes aim at the PRA’s penalty provision which, as currently interpreted by the state Supreme Court, requires at least a minimum penalty be assessed to agencies who are found to have violated the law.

At least in principle, the penalty provision is supposed to be a meaningful deterrent to agency misconduct.

“[W]hen an agency erroneously denies a public record and a party has prevailed against the agency in obtaining a copy of the public record,” the state supreme court concluded in a 1997 case, Amren v. City of Kalama, “an award is warranted. This is consistent with the Act’s strong policy favoring ‘strict enforcement’ of the award provision to discourage improper denial of public records.”

Yet, HB 1899 would simply remove the requirement that an agency be penalized if it is found to have violated the PRA.

Toby Nixon

That open government advocates are having to play defense in Olympia is hardly news to Toby Nixon, a former Republican state legislator who is now the President of the Washington Coalition for Open Government (WCOG), an organization that is as old as the public records law itself.

“It’s very much an uphill fight,” says Nixon, who now works days as a program manager for Microsoft and, especially when the legislature is in session, well into the night on open government issues. “The agencies pick away at it [the public records law] every year.”

This session, Nixon and WCOG started out tracking more than seventy bills that have open government ramifications. As of late last week, he said, 33 are still alive.

What’s unusual about HB 1899 is that it didn’t start out to be an undiluted gift to state agencies. When it was introduced—with bipartisan support—the bill would have given trial court judges the discretion to award zero penalties if they chose. But it also would have allowed judges to assess up to $500 per day in penalties in cases where agencies are found to have acted in bad faith–a considerable leap from the current limit of $100 per day.

This version of the bill—removing the minimum penalty, but allowing judges to levy up to $500 per day penalties on the high end—is actually the version of HB 1899 that Roland Thompson thought he was testifying in favor of when he arrived at the House Committee on State Government and Tribal Affairs on February 16th.

Thompson is the Olympia-based lobbyist for Allied Newspapers of Washington which, understandably, advocates for more open government, not less, and opposes bills that would make it easier to close meetings and deny journalists access to public records.  Thompson and the ANW, like Nixon and WCOG, thinks the decades-old, $100 per day cap on punitive awards is too low to discourage the worst kinds of agency misconduct.

“I don’t have problem with zero,” Thompson says, “but I wanted the top end [the $100 a day cap] to come up.”

In his discussions with legislators working on the bill, Thompson insists it was well understood that there was a quid pro quo at work, that his organization would accept the reduction to zero on the low end of the penalties, in exchange for raising the daily cap to $500.

What the newspaper association’s lobbyist didn’t know, however, is that earlier in the session, before the bill was voted on, it had been amended. The person who made the motion to amend it was one of the bill’s sponsor’s, Rep. Mark Miloscia, a Democrat from Federal Way. The amendment was to eliminate the language in the bill that would have set the upper penalty at $500 a day.

A funny thing happened on the way to this compromise, however.

When the State Government & Tribal Affairs Committee met at 8 a.m. on the 16th, HB 1899 was one of 13 bills on the Committee’s plate. Thompson planned to testify on the bill, and did. But by the time arrived at the hearing, the Committee had already passed the bill out of Committee and moved into executive session. You can view the whole committee meeting (except for the executive session, here.)

As the executive session ended, the Committee’s chairman, Democrat Sam Hunt from Thurston County, appeared confused. After a long pause in which he conferred with a staff person, Hunt apologetically announced: “House bill 1899 has not had a hearing, so if somebody wants to testify on 1899, you will get the option to do it in a backwards fashion, after we voted the bill out of committee and if one convinces us, we can always reconsider and re-vote on it. Sorry about that.”

When Thompson finally got to testify, he spoke for only a few minutes and gave his  endorsement to what he thought was in the bill.

“What you have in [HB] 1899,” he told the Committee, “is a problem where a hundred thousand dollars a day may not be enough in some situations, and five dollars a day is too much.” He elaborated that in the case of some multi-million dollar public works projects, denying access to key records before a key vote on the project should be punishable with greater than $100 a day penalties. But he also allowed that there might be situations where “you might have a very small organization like a cemetery district or a very small port district, where might have a troublesome or abusive requester who’s hanging them on a technicality when they take them to court.”

“This is a step in the right direction,” he concluded, “and we thank you for that.”

What Thompson didn’t know, however, is that earlier in the session, before the bill was voted on, it had been amended. The person who made the motion to amend it was one of the bill’s sponsor’s, Rep. Mark Miloscia, a Democrat from Federal Way. The amendment was to eliminate the language in the bill that would have set the upper penalty at $500 a day.

“Mister Chair,” Rep. Miloscia explained, “this [the amendment] just corrects the language of the bill, inadvertent mistake, (sic) we do not intend to increase the overall penalty to five hundred dollars. This reduces it back down to what is currently in the state law for the upper limit.”

Thompson had no idea when he testified that Miloscia had made the amendment. He was clearly taken aback when told that Miloscia had explained that the $500 figure in the original bill was there on account of an “inadvertent mistake.”

“That’s really odd,” Thompson said about Miloscia’s explanation. “He knew I wanted five hundred dollars.”

Indeed, Thompson said, in early discussions about the bill, some Republican legislators were open to raising the maximum penalty to $1,000 a day.

When told about Rep. Miloscia’s ‘inadvertent mistake’ explanation, Toby Nixon replied: “I don’t believe it for a second.”

“What happened,” Nixon continued, “is that the lobbyists for the agencies came down on him [Miloscia] like a ton of bricks” when they found out the bill had the five hundred dollars per day penalty in it.

(Rep. Miloscia did not return repeated phone calls requesting comment on the change in the bill.)

Nixon sees a striking similarity in the way HB 1899 got bent up by the House State Government and Tribal Affairs Committee this year, to what happened six years ago. At the time, Nixon was the Ranking Republican on what was then the House State Government Operations and Accountability Committee. The compromise, in 2005, was to shorten the statute of limitations (limiting the time in which a public records requester could bring a lawsuit against an agency) in exchange for raising the upper daily penalty to $500.

“So we thought we had a deal to increase the penalty and decrease the statute of limitations,” Nixon says. “It passed out of committee and went to the leadership but the next thing you know the AWC and other lobbyists for the agencies went to the leadership. So they [the leadership] deleted it [the higher penalty] by amendment and kept the shorter statute of limitations.”

Only this time around, the lobbyists got to HB 1899 before it even got out of committee. Once again, the $500 a day penalty was knocked out, but the change favorable to the agencies—reducing the minimum daily penalty to nothing—was preserved.

Just before I interviewed Nixon last Friday (March 4th) he’d sent out a strongly-worded email to the Senate Government Operations, Tribal Relations & Elections Committee (where the bill is headed next), strongly opposing HB 1899. In the email, he recounted what happened in 2005.

“Municipal organizations such as AWC, WSAC [Washington State Association of Counties] and WSSDA [Washington State School Directors Association] convinced the legislature to eliminate the penalty increase while keeping the decrease in the statute of limitations, with the result that the final adopted bill reduced possible PRA penalties by 80%,” he wrote. “Penalties do not need to be reduced even further!”

With the existing $100 a day limit, Nixon says, “the problem is that it just becomes a cost of doing business rather than the deterrent that it was intended to be. It really needs to be twenty-five hundred dollars a day when you consider the one year statute of limitation.”

Spokane attorney and former Center for Justice lawyer Breean Beggs has been involved in numerous public records cases, including the Neighborhood Alliance v. Spokane County case that is currently before the Washington Supreme Court. He sees a note of absurdity in the move to knock out the $5 a day minimum, inasmuch as the cost to an agency between paying $5 a day and nothing is trivial, especially given the other costs of public records litigation.

On the other hand, he said, there is at least some potent symbolism for plaintiffs when the courts award even $5 a day penalties in cases where agencies are found to have violated the law.

“Based on my experience both directing litigating public records cases and watching what happens in other cases, even though five dollars a day is not a lot of money, it is concrete evidence for the plaintiff that the government has engaged in misconduct,” Beggs says. “That’s important because usually the government entity has its own public relations machine to make its case, so when a citizen gets an award from a court, even if it’s a small award, it’s an important statement. And it discourages misconduct. There really is a difference between having to write a check and not writing a check, even if it’s a small check.”

The other irony Beggs notes, is that when penalty judgments are appealed, it’s almost always the plaintiffs that are appealing meager judgments, arguing that the trial court abused its discretion.

“One of the highest awards I can think of is the Yousoufian case,” Beggs said, referring to the epic case of Seattle businessman Armen Yousoufian. In that case, the trial court judge found that King County had not acted in good faith in responding to his public records request on the Qwest Field project.

“Even in that case,” Beggs said, “the forty-five dollar per day penalty is less than half what the maximum penalty is. So the evidence is that, if anything, the penalties being handed out in the courts are too low, not too high.”

–CFJ

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