Public Records Access
The public should care about the availability of open records which make government employees accountable. However, those employees know the personal risk and do everything within their power to restrict access to public records.
“Sunshine laws” serve the people. Investigative journalists use them to check on whether officials are complying with law. In Washington state, the Public Disclosure Act (RCW 42.17) codifies access to state and municipal records and the Freedom of Information Act (FOIA) controls access to federal records. [Silent Withholding]
Unfortunately, government officials comply with these laws on about half the requests that they receive. Generally, before officials follow the law, they consider departmental political interests and their personal goals and job security. In Washington state, the incidence of withholding public records for personal reasons has increased. Now, even courts withhold transcripts and other records when many of them qualify as open records under state and federal law.
Three principal reasons exist for open records and prompt compliance with laws governing them:
Personal. The public needs information to protect families and property that covers sex offenders, crime and court action, academic qualifications and performance, building and zoning law enforcement, air and water quality monitoring, and industrial waste discharges, among other concerns.
Political. The public must have information to make good choices, influence policy, and keep up with the progress and problems of communities. People cannot support what they do not see especially significant when put to the test in balloting on tax levies and other pecuniary interests.
Public Officials. Accountability prompts better behavior by public officials. The knowledge that people can see what they put in records, as well as what they do at meetings, tends to improve the quality of their work.
Washington state needs a public records audit similar to the one recently held in Ohio to expose corruption and wrongdoing covered-up by withholding public records. In Ohio, stories about the survey published across the state helped educate citizens and officials.
For a while the Ohio media expects to see better handling of requests. They stress “for a while” because previous purges in other states have immediately improved access then bureaucratic self-interest again took hold and slowed the process.
Property and court records officers generally respond promptly which results from a commitment to staffing and budgeting with public service in mind. Most other agencies could care less about public service and concentrate on covering up wilful negligence.
Corrupt judges misuse their power to withhold records and gag reporters. That gagging helps their friends and supporters evade punishment for improper use of government funds and elder abuse which allows both judges and friends to feather their nests with the proceeds.
Freedom of Information Act (FOIA) generally provides that any person has a right to request access to federal agency records. Nine legal exemptions and three special law enforcement exclusions protect some federal records from disclosure. Under FOIA, agencies have 20 working days to provide an initial response.
However, officials rarely respond in the mandated time and fabricate many additional exemptions and exclusions to suit their own purposes. Reporters need an extensive knowledge of laws pertaining to records access otherwise officials will play a constant shell game. They move records from one location to another or impose impossible conditions. Appeal of unlawful actions does not succeed because bureaucrats cover up for each other. Action only results from publishing their names with details of their transgressions.
FOIA encourages reporters to work together with agencies to define the scope of requests and timing of responses. However, the misuse of that trust and cooperation by officials results in achieving their personal goals not the public interest.
Another federal recommendation relates to establishment of "multi-track" response systems. It says that they facilitate and expedite simple requests instead of mixing them with complex inquiries in a chronological queue. However, these systems allow manipulation and do not record the deliberate withholding of documents.
In 2002, Merrill Wallace II, Executive Director, Housing Authority of the City of Bremerton, (Contract Administrator for HUD-Seattle) obtained an excellence award from National Association of Housing and Redevelopment Officials (HAHRO) for a maintenance data collecting/reporting system.
While the grantors of the award may have thought the description genuine and the local rotary club applauded Wallace, his director Clarence Nelson and his staff, certainly do not use it to process public records requests. That would spoil the collusive records game that they play with people they should oversee. If they used their system then they could not cover up their dereliction and malfeasance. The award description read:
The Bremerton Housing Authority has developed a comprehensive maintenance labor and cost reporting system that established a new quality standard for maintenance management. These reports allow the department to measure and compare productivity, and document departmental improvements. Through the use of this system, the Facilities Director is able to monitor upgrades and production accurately and efficiently, evaluate crew composition, and verify administrative data entry. This has led to improved customer service and efficiency, and overall departmental savings.
Bremerton refuses access to documents with lame claims to privacy and demands unacceptable and unlawful documentation by reporters to thwart inquiries. Nelson probably hopes that reporters will miss their deadlines and go away. Nelson (or his staff) do not claim legitimate exemptions or exclusions because they know that knowledgeable reporters will challenge them. Instead, they completely ignore repeated requests for documents.
Bremerton has unfulfilled FOIA inquiries dating back at least four years. Persistent requests avail nothing. However, when one knows the extent of malfeasance they wish to hide one understands the reason for the machination. [Silent Withholding]
New Jersey
In a recent case, New Jersey went part of the way toward accountability by its government employees with a new oversight council - New Jersey Government Records Council (NJGRC). NJGRC recently fined a municipal clerk $1,000 for "knowing and willful" violation of the Open Public Records Act. It was the first sanction issued under the new act which replaced the previous open records law (2002). The council was created along with the new law to resolve disputes.
A rabbi brought a complaint against a township for taking five months to respond to requests for contracts between the town and its attorney. The act required access to records and copying within seven days. The council found the clerk in violation then imposed a mandatory $1,000 fine for a first violation.
State of New Jersey later advised the council that it should grant a hearing before it could fine the clerk as a matter of due process - it needed a finding of intent to violate the statute. It claimed that the clerk should have an opportunity to defend herself before the council imposed a fine because the council could not infer intent the from filed documents.
The council decided to levy the fine in spite of state advice. The chairman said:
We need to set a tone and show we are serious about enforcing the law. Where a mandate is clear, explicit and unequivocal in the law, a hearing should not be required for us to determine if a fine should be issued.
All well and good for administrative control but what about the rabbi who needed the documents? Will the agency find another way to circumvent the law? Why did the council not find fault with the clerk’s director and fine that person? Perhaps it sounded better at the local rotary club for the clerk to take the blame. [Shain v. Township of Lakewood]
California
Another twist on the same theme relates to a legal researcher serving a 45-day jail sentence for leaking police documents in California. The documents showed that the LAPD failed to discipline officers who abused their wives and girl friends.
During litigation, a district judge had ordered the LAPD to turn over documents on officers found to have engaged in domestic violence. They stipulated that the information not go public before trial.
Hired as an expert witness in 1997 by a lawyer, she leaked documents to a television reporter. The lawyer sued LAPD about the murder of a woman by her police officer husband, The researcher received a sentence of 60 days in prison for contempt of court.
US Court of Appeals upheld the conviction but vacated the sentence noting that the trial judge should give "serious consideration" to the prosecutor's recommendation that imprisonment "would be extreme". The judge reduced the sentence to 45 days.
Several women's advocacy groups spoke out again the conviction. The director of the National Center of Women and Policing said:
It is outrageous that a whistle blower - who has exposed such serious abuse committed by LAPD officers and the mishandling by the department of complaints against officers involved in domestic violence is punished while most of the men who committed these acts of violence remain officers in good standing.
Several experts say that the researcher (59) ranks as the first person in the country jailed for violating a protective order in a civil case. [Mullally v. City of Los Angeles]
Washington
In Washington state, supreme court recently fined King County more than $100,00.00 for withholding public records. Rick Anderson, Seattle Weekly [25 Feb 04] reported the fine as “the largest Open Records Act penalty in state history”.
The plaintiff’s lawyer evidently “told the high court that the record fine is not big enough and the law not clear enough to prevent public agencies from similar random acts of stonewalling and nondisclosure” - he certainly got that right. He also claimed that the court should have increased the fine for the four-year public records runaround to $1.1 million.
The lawyer claimed that his client “got the brush-off from county officials and resorted to formally requesting documents under the records law, which compels public agencies to release documents except for those exempted for reasons such as national security and personal privacy”.
He said that: “The finding of facts and conclusions of law outline in gruesome detail four years of runaround" by the office of County Executive Gary Locke and his successor, Ron Sims.” The county eventually acknowledged “gross negligence”.
Conclusion
HUD-Seattle and their agent Bremerton Contract Administrator also City of Seattle unlawfully withheld public records and continue that practice. They had a part in this reporter going to jail for 111 days including 25 days in solitary confinement.
Now under Washington Supreme Court review, the Washington case compares with the California case. It differs slightly. Washington superior court jailed the reporter for civil contempt for coercive purposes whereas in California the judge convicted the legal researcher of criminal contempt.
Perhaps Washington should take a leaf out of the New Jersey book and prosecute agency staff for deliberately withholding documents that impact court findings. In Seattle, government officials allowed a non-profit housing administrator under their jurisdiction to file frivolous law suits that caused draconian punishment without due process of law in an unproven case. [Silent Withholding]
[Nmesis]
