(The Center Square) – The Washington State Attorney General’s Office’s efforts to modify “best practices” for responding to public records requests is putting it at odds with some state agencies and local government advocate groups that feel the changes would be overly burdensome. At the same time, the changes have drawn support from government transparency groups such as the Washington Coalition for Open Government.
The Model Public Records Act Rules law gives the AGO authority to set guidelines for state agencies to comply with public records requests, though they are legally nonbinding. In addition to modifying the Model Rules, the AGO announced the creation of a new unit to modernize public records and retention processes.
Among some of the changes the AGO has proposed to the Model Rules include the following:
Add the word “prompt” and require a response within one business daySeparate simple and complex requests in terms of responsesLimit third-party notification of recordsElectronic payments; fee waiversAuto-deletion ban
The state has recently been sued by open government advocate Jamie Nixon over the failure to produce records related to its auto-deletion policy that allows state employees to delete internal communications. In 2017, a court ruling found that legislators are subject to the Public Records Act, after the Associated Press and other media filed a lawsuit.
Speaking on behalf of WaCOG, Colette Weeks said at Thursday’s public hearing on the Model Public Records Act that best practices should “require that all deletion decisions are made only by records management staff. Also prohibit storage of the public records on personal devices.”
She added that “third-party notification that a public records request has been made should be the exception, not the rule. It needlessly delays the process unless disclosure could cause irreparable harm to a person or a vital government function. Agencies should be flexible and aim to complete simple request in one day.”
However, Candice Bock with the Washington Association of Cities said at the meeting some of the proposed changes could “create more problems than it will solve.”
One of them is the notion of “triaging” requests, which Bock said “puts us in the position of deciding which requester is complicated, which is simple. That could lead to debate and disagreement amongst the requesters about how they’re being identified or make them split their requests into multiple requests to try and avoid being considered complex.”
Regarding third-party notification limits, she said that “we’re concerned that the provisions in the proposed rules changes would actually be inconsistent with a statutorily required third-party notice and so they should reflect that there are times when third party notice is absolutely mandated in the statute.”
Dolapo Akinrinade, director of university policy and public records at Western Washington University, also expressed reservations about the notion of “triaging” requests.
“It would impose an undue burden on public records officers to have to figure out what is important to one person,” Akinrinade said. “Many requesters consider their request important and it’s just going to be difficult for the public record officers who have made that decision.”
Executive Director of the Washington State Transit Association Justin Leighton shared similar apprehensions, arguing that the proposed changes represent “an overreach of the administrative rulemaking process. They go well beyond technical updates. In fact, they create new policies that would have real operational and financial consequences for public agencies across the state. These kinds of decisions should be made through a legislative process, not through administrative rulemaking.”
Taking a separate approach was long-running AGO critic Bob Scales, a former King County prosecutor and president of Police Strategies who has filed several lawsuits against the AGO as well as Washington State University over public records.
At the meeting he said the AGO had a conflict of interest in setting the rules, since the represent the state agencies who might oppose them.
“The Attorney General’s Office does not represent the public’s interests or the requester’s interests,” he said. “The Attorney General’s Office represents state agencies and themselves in terms of public records. They have attorney-client relationships with their clients. They have to look out for the best interests of their client, so if their clients do not want to disclose public records, then the Attorney General’s Office is going to advocate for nondisclosure.”
He also noted that the issue with public records requests aren’t the rules, but compliance. Scales is the plaintiff in a lawsuit filed against the AGO for redacting public records he requested. According to court documents, the Court of Appeals in October reversed a prior trial court’s decision and sided with Scales in the matter.
In an email to WaCOG, Scales wrote that “there is no enforcement mechanism to ensure that agencies comply with the PRA other than filing a lawsuit under RCW 42.56.550. This is a costly and time-consuming path that most requesters are unwilling or are unable to take.”
Written comments on the proposed changes are due to the AGO by Nov. 17. Comments can be sent to agorulemaking@atg.wa.gov.
