Legislature shines spotlight on public records requests, costs

By Tim Gruver/WNPA Olympia News Bureau

Public records are one of the most important tools citizens use to keep tabs on government, but emerging technologies have made maintaining their accessibility in the digital age for government agencies a challenge.

This legislative session two bills winding through the House of Representatives are tackling the cost of accessing public records off the Internet.

HB 1595 would allow agencies to charge up to 10 cents per page for electronic records and 10 cents per minute of an audio or video recording based on Seattle’s cost model for electronic records. Agencies may charge up to 40 cents for every 25 electronic attachments and 10 cents per gigabyte for digital downloads under the proposal.

Currently, there is no default charge for electronic records such as email. Agencies may only charge the actual cost of providing the records through the expensive process of hiring a consultant to evaluate the price of file transfers and server maintenance.

The Public Records Act, enacted by Washington voters in 1972, allows agencies to charge a default rate of 10 cents per page if a copy’s actual costs are indeterminate. The agency may also require a deposit up to 10 percent of a request’s actual copy costs, which can include labor and shipping costs.

The act requires state and local agencies to make their records available to public inspection and copying upon request, unless exempted under law.

After receiving a public records request, an agency must respond within five business days. It must provide the record, give an estimated time for fulfilling the request, or deny the request with a written explanation.

“We charged at the lowest per minute rate for the salary of the lowest someone who does this work and we did not include the benefits or overhead charges,” said assistant city attorney Mary Perry of Seattle. “It is simply a drag and drop charge, one minute to drag and drop 25 attachments to an email. This is not a moneymaking effort. It is simply an effort to recoup our actual costs including the nine cents per gigabyte charge that we are simply passing on to our requesters.”

Bill sponsor Rep. Terry Nealey, R-Dayton, believes that HB 1595 strikes a balance of providing more resources for agencies to manage costs and record retention, while maintaining transparency and public access to public records.

“We need to update and align the public records requests law with current technology and in the end it’s going to improve transparency,” Nealy said. “When you have a whole long line of requesters in the queue, and especially a vexatious requester or a burdensome request, it’s going to slow down the ability of that agency to get those records out on legitimate requests.”

Requesting public records is not an act limited to journalists – studies show that requests are made by citizens from all walks of life.

According to a report by the State Auditor’s Office, the news media made up a small percentage of people who filed public records requests last year. Private citizens made 26 percent of all requests and law firms made 12 percent. Comparably, the media made 3 percent of total public records requests.

Another 27 percent of people who requested public records did not identify themselves and 3 percent listed themselves as “anonymous.”

Toby Nixon, president of the Washington Coalition for Open Government and a Kirkland city council member, shared the concern of many citizens that HB 1595 may create a new barrier for every-day requesters.

“The thing that caused the most concern were default charges for people of limited means who might have grown accustomed to getting electronic records at no charge,” Nixon said in a phone interview.

Many public records requests are made by automated computer programs, or “web bots,” created by data-mining firms and other commercial entities that can deliver hundreds of requests in a single hour.

HB 1595 prioritizes individual public records requests over bot requests by allowing agencies to deny automatically generated requests made within a 24-hour period by a single source if they interfere with the agency’s other duties.

“You can receive a bot request every few minutes for hours and hours,” said Assistant Attorney General for Open Government, Nancy Krier. “Once you receive a public records request, a proper one, you have to respond to it. When an agency is responding to public records requests every few minutes, it can disrupt the agency’s other obligations.”

According to city clerk and public records officer Kathi Anderson, the city of Kirkland receives around 4,500 public records requests every year with roughly 60 percent related to police records.

Burden of it all

Kirkland Mayor Amy Walen believes that excessive public records requests not only produce unnecessary work for public employees, but are overly invasive for the public.

“Someone can request every single record on park volunteers, but why should we dissuade people from volunteering to plant trees if all their information is going to end up on a computer,” Walen asked. “Why would anyone want to know that? And how many hours would it take to get all that? Government should be open to everyone, but there are a few small changes that need to be made (to this bill) to protect small government.”

Huge public records requests can be taxing on small cities that lack the resources to fulfill, let alone estimate the cost of such tasks.

In 2016, Lynnwood resident Theodore Roosevelt Hikel, Jr. requested thousands of emails from the Lynnwood City Council covering an 18-month period. The city did not provide an estimated amount of time for fulfilling the request and instead asked Hikel to clarify his request due to the large volume of records needed to fulfill it.

Hikel filed and won a lawsuit against the city. The court ruled that the city’s request for clarification could not extend the time allowed to provide the records. The city of Lynnwood must now pay the legal fees Hikel accrued pursuing the case, which have yet to be determined.

Currently, agencies maintain their own public records databases, often leaving smaller agencies too understaffed to rapidly respond to requests for large volumes of records.

A second bill, HB 1594, would provide $25,000 for a study conducted by a consultant handpicked by the state archivist to evaluate creation of a web portal placing public records into a single website inspired by the one used by the state of Utah. The portal would also track requests and notify requesters on estimated time of availability.

Additionally the measure would require the attorney general to assist local governments with managing records requests, and the State Archivist would offer consultation and training services on improving record retention practices.

A seven-member work group, composed of four legislators and three community representatives handpicked by the Legislature, would convene in September with its findings due by September 2018.

Opponents of the bill at its public hearing last month were concerned the legislation may create barriers to records access such as allowing agencies to offer mediation with requesters to clarify requests or to resolve disagreement over disclosure.

HB 1595 passed out of the House Committee on State Government, Elections, and Information Technology with a majority 8-1 do-pass vote and was referred to the Rules Committee Feb. 17. Rep. Morgan Irwin, R-Enumclaw, was the lone dissenter. No floor action is yet scheduled.

The same committee passed HB 1594 with a 6-1 do-pass majority vote Feb. 14; two members voted to move the bill on without recommendation. Feb. 24 the House Appropriations Committee sent the measure to House Rules on a 25-7 majority vote. It is not yet set for floor consideration.

(This story is part of a series of news reports from the Washington State Legislature provided through a reporting internship sponsored by the Washington Newspaper Publishers Association Foundation. Contact reporter Tim Gruver at timgruver92@gmail.com).