NFOIC Joins Washington State Lawsuit Over Guv’s Claims of Executive Privilege

Good for the good ‘ol NFOIC….

The National Freedom of Information Coalition (NFOIC) has joined media associations and good government groups in asking the Washington state Supreme Court to limit Gov. Chris Gregoire’s authority to withhold documents from public scrutiny.

The case grew out of a lawsuit filed in April 2011 by the Olympia, Wash.-based Freedom Foundation, an NFOIC member organization in Washington state, over the governor’s claims of “executive privilege” as a basis for shielding records from disclosure.

At issue in the case are Gov. Gregoire’s claims of executive privilege to conceal records regarding a controversial, $2 billion proposed tunnel along the Seattle downtown waterfront to replace the elevated Alaskan Way Viaduct, in addition to other documents.

Other organizations supporting the Freedom Foundation’s position in amicus briefs filed in the lawsuit are Allied Daily Newspapers of Washington, the Washington Newspaper Publishers Association, the American Civil Liberties Union, the Institute for Justice and the Washington Coalition for Open Government (WCOG), also an NFOIC member organization.

The Freedom Foundation and its supporters say the governor should only be able to shield records from disclosure under the provisions of the state Public Records Act (PRA), which includes a “deliberative process” exemption. Gregoire’s attorneys say she is neither seeking to invalidate the PRA nor claim general immunity from it. They contend, however, that the constitutional separation-of-powers doctrine gives her additional authority to withhold documents in some instances.

A Great Idea: A Courts Access Audit!

Hats off to the Tacoma News Tribune, which took a long, hard look at access to court files in the region, with disturbing results…

Several small courts in the South Sound, including half of the courthouses in Pierce County, fell short of that state standard in a recent survey of 22 district and municipal courts conducted by The News Tribune.

In municipal courts from Sumner and Fircrest to Lakewood and Yelm, among other sites, court clerks denied, hindered or delayed requests to view case records. They gave reasons that contradicted legal requirements set down by the Washington State Supreme Court.

Some courts handled requests properly, providing immediate access to files. Smaller municipal courts, typically relying on one or two staff members with limited training, were most likely to block or hinder access – but larger, higher-volume courts also fell short in some instances.

Some clerks said the cases were still “open” or “ongoing” and thus barred from public view. Some said only attorneys and defendants could view case records. Some said case files were confidential. Clerks in two courts – Sumner and Fircrest – insisted the only way to view case files was to pay for copies.

Those answers were wrong. They contradict state rules that govern courts large and small. High-ranking legal leaders, including Barbara Madsen, chief justice of the state Supreme Court, said The News Tribune’s findings paint a picture that calls for correction and training.

“That’s obviously troubling,” Madsen said. “It’s troubling to think that members of the public would not be able to access records which are obviously accessible, so I’m disappointed. We will be looking further into the situation.”

Well, I’m Glad We Worked That Out. Too Bad It Took A State Supreme Court…

Is it just me, or did you think we had kind of already settled this point of law a decade ago?

Accident reports compiled by troopers and maintained in a state database should be treated as public records available by request, Washington’s Supreme Court ruled Thursday.

Justices said in their 7-2 decision that the Washington State Patrol improperly withheld files from a person seeking location-specific records. He was asked to sign a document vowing that he would not use the records to sue the state.

The state had argued that a federal statute shielded the records because the documents were located in an electronic database that the Department of Transportation utilized for a federal hazard elimination program.

“Until 2003, citizens have been able to request and receive copies of accident reports specific to a location,” Justice Mary E. Fairhurst said in the majority opinion. “The state now asks us to place Washington citizens in a worse position than they would have been before (the federal statute). The state’s argument is rejected.”

The court also awarded plaintiff Michael Gendler an unspecified amount of attorney’s fees for the case. A spokeswoman for Attorney General Rob McKenna says attorneys are reviewing the decision to see what options they might have.

Gendler was paralyzed from the neck down in an October 2007 bike crash after his tire got caught in a grate on the Montlake Bridge in Seattle. He sued the state, claiming a gap between steel panels was more than a half-inch wide – enough to catch a bike tire.

Taping Executive Sessions: A Fine Idea in Washington State

Now here is a problem in need of a solution, and a public official with a fine idea!

Did the new Olympia City Council begin the new year with an illegal council meeting?

Unfortunately, members of the public will never know the answer to that question because there is no audio or video record of what went on behind closed doors.

The council’s apparent misstep is an excellent example of why the state Legislature must adopt Attorney General Rob McKenna’s bill to allow government agencies to record their closed-door executive sessions. If there’s a question whether the city council or county commission or school board broke the law behind closed doors, there’s proof in the video or audio recording. A judge can review the recording in his or her chambers and determine whether an illegal meeting was conducted.

Moving Backward (As in $0) On Penalties in Washington State…

Wow…talk about backwards momentum.

The Seattle Times reports:

A government agency that improperly withholds public records can now emerge from legal action with no financial penalties.

A bill approved by Gov. Chris Gregoire on Thursday allows courts to award members of the public compensation of between $0 and $100 for every day that a record was improperly kept secret. That lowers the minimum penalty from $5 per day.

More from the Bellingham Herald:

Apparently, an earlier version of HB 1899 changed that to a range of $0 to $500. Thompson testified in favor of that bill, calling it a good compromise. But, unbeknownst to him, the committee had already changed it to $0-$100 and sent the bill out the door.

“I had no idea it had changed,” he said.

Years ago the statute of limitations was changed from five years to one year, so public agencies could be liable for fewer days of wrongly withholding records. As part of that bill, Thompson wanted, but didn’t get, the upper penalty limited increased to $500.

The reality is, he said, adjusting the lower and upper ends won’t really have that big of a difference. Most of the awards are in between, he said, and the upper limit has been used sparingly.

Also, the big dollar figures come from attorneys fees anyway, not penalties, he said. He pointed out that it takes a lot of days at $5 per day to reach one hour for an attorney getting paid $250 an hour (50, to be specific).

The governor is scheduled to take action on the bill today (this morning, actually). He said he expects that she’ll sign it.

Bottom Line: They’d face more consequences for not separating their recycling….


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This Idea Comes Out of the Swamp Every Year, Like Jason in That Horror Movie…

Lewis County (Washington) officials are supporting a bill that would cut down on the time spent fulfilling expansive public records requests and aid them in recouping money spent doing so.

New legislation, SB 5088 and HB 1300, would give municipalities and government agencies the option to charge labor costs for personnel after five hours in a given month have been dedicated to fulfilling a person’s request for public documents. If the requester doesn’t want to pay, the agency will complete the work within the allotted five hours the next month.