The Public's Right to Know

Last month, three bills were introduced in the House regarding public access to public records.

HB 2839 – Legislation designed to stop government agencies from suing record requesters to block public disclosure requests.

HB 3231 - seeks to limit the use of attorney-client privilege to block public disclosure requests

HB 3251 - would prevent self insurer's from threatening to cancel a local government's insurance for refusing to comply with a public disclosure request.

The three measures were placed in the House State Government & Tribal Affairs Committee.

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HB 2839: An Act relating to an agency’s access to superior court for the purposes of the public disclosure act; and amending RCW 42.56.540.

The Public Records Act (PRA) requires agencies to respond to public record requests within five (5) business days. It also requires that all state and local government agencies make all public records available for inspection and copying unless they fall within certain statutory limitations.

Under certain circumstances, agencies have the right to take additional time in order to notify third parties or agencies affected by the request or to determine if the request includes material that is exempt under PRA.

The bill analysis tells us "any person who is denied the opportunity to inspect or examine or copy a public record can file a motion in Superior Court to learn why the agency has refused access to the record. The Court may examine the record in detail in order to establish if the refusal is consistent with the statute that exempts or prohibits disclosure.

An agency or a person who is named in the record, or to whom the record specifically pertains may file a motion asking the Superior Court to enjoin disclosure of the public record. The Court may issue an injunction if it finds that release of the information is clearly not in the public’s interest and would substantially harm a person, or would substantially damage vital government functions.

In Soter v. Cowles Publishing Co. (No. 78574-1) the Court held that agencies, as well as persons named in the record, may seek such judicial determination if the exemption applies and obtain an injunction if applicable. The bill was scheduled a public hearing on January 29, 2008." The opinion can be found here: http://www.courts.wa.gov/opinions/pdf/785741.opn.pdf

The entire measure can be found at: http://apps.leg.wa.gov/documents/billdocs/2007-08/Pdf/Bills/House%20Bills/2839.pdf

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HB 3231: An Act relating to the public disclosure of records relevant to a controversy to which an agency is a party; and amending RCW 42.56.290.

Again, the Public Records Act (PRA) requires all state and local governments to make all public records available for public inspection and copying unless they fall within certain statutory limitations. According to the bill analysis, the provisions requiring public records disclosure must be interpreted liberally and the exemptions narrowly in order to effectuate a general policy favoring disclosure. A denial of public records request must be accompanied by a written statement of the specific reasons for denial.

The bill analysis tells us “any records that are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pre-trial discovery for causes pending in Superior Court are exempt from disclosure under the PRA. The Washington State Supreme Court has defined “Controversy” as completed, existing or reasonably anticipated litigation and has recognized this protection is triggered prior to the official initiation of litigation and extends beyond the official termination of litigation.”

Two men, Rowland Thompson, Allied Daily Newspapers of WA, and Andy Cook, of the Building Industry Association testified against allowing a government agency to sue a requester. If an agency is in doubt, Thompson recommended that the agency refuse the public disclosure request and allow the requester to determine if they want to pursue the request in court. “It can be a way to intimidate requesters,” said Cook. The BIA was sued by Pierce County over a public disclosure request for fraudulent voter registration forms.

Committee Summary of Bill: "The current Public Records Act exemption for records relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery is narrowed to apply only in cases of an on-going controversy. In addition, any records created prior to the filing of litigation; or notice of legal claim is subject to disclosure."

The entire measure can be found at: http://apps.leg.wa.gov/documents/billdocs/2007-08/Pdf/Bills/House%20Bills/3231.pdf

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HB 3251: An Act relating to local goverment self insurance programs; and amending RCW 48.62.011 and 48.62.101.

Local governments have the authority to individually or jointly self insure against risks.

Committee Summary of Bill: "A self-insurance program is not able to define the terms under which an entity complies with the Public Records Act. A self-insurance program is not able to define the terms under which an entity complies with the PRA. A self-insurance program may not cancel or threaten to cancel insurance coverage based on an entities decision, in consultation with its attorneys, to release public records in compliance with the public records act."

The entire measure can be found at: http://apps.leg.wa.gov/documents/billdocs/2007-08/Pdf/Bills/House%20Bills/3251.pdf

Fiscal Note is here: https://fortress.wa.gov/ofm/fnspublic/showPackage.asp?RecordID=pdfs/2008/p19032.pdf