Government secrecy destroys the value and advantage of open government. However, officials keep an increasing amount of public information under wraps to avoid responsibility for their actions under laissez faire policies that they have implemented.

In Washington state, the Public Disclosure Act codifies access to state and municipal records and the Freedom of Information Act (FOIA) controls access to federal records. Legislators intended these laws to insure the free flow of information essential to democracy at federal, state, and municipal levels of government.

Taxpayers should insist upon access to official documents under these “sunshine laws”. This makes government employees, whose salaries they pay, more accountable. The present rampant and unlawful withholding of public records by officials adversely affects communication. Official secrecy allows impunity - exemption from punishment for malfeasance (official misconduct). [Impunity]

Public disclosure laws apply to everyone not only journalists and lawyers. However, the most frequent users belong to those groups. Journalists regularly use public records to obtain information when writing about officials suspected of malfeasance. However, gaining access to public records has become increasingly difficult with the unlawful and restrictive practices now implemented at all levels of government.

The proposed Openness Promotes Effectiveness in our National Government Act of 2005, or Open Government Act (16 Jun 05), aims at substantially enhancing and expanding accessibility, accountability, and openness of federal government agencies. It modifies existing law and intends to respond to common complaints and limitations in the current system, including timely and comprehensive response to requests.

This initiative recognizes the need for change and more compliance with existing laws by agency officials. The legislators claim pro-openness, pro-accountability, and pro-accessibility. Particularly, the bill includes agency records held by outside private contractors by clarifying that those records remain subject to FOIA wherever located.

The bill specifically includes web journalism by recognizing its writers whether salaried or freelance. It grants them the traditional privileges and fee waivers enjoyed by journalists employed by traditional media regardless of their institutional affiliation.

As reform legislation, it considers open government essential to a healthy democracy. Primarily, it intends to allow taxpayers to see how government spends and administers their money. It presumes an honest exchange of information to insure government accountability by keeping officials personally accountable - both ethics presently lacking in agencies at national and state levels.

Importantly, the bill authorizes the recovery of attorney fees for litigation and provides real consequences for malfeasance. It addresses agency delay by imposing penalties on agencies that miss statutory deadlines and strengthens reporting requirements on FOIA complaints. It also enhances authority for the Office of Special Counsel to take disciplinary action against government officials who arbitrarily and capriciously deny disclosure.

The French term “laissez faire” means literally “let things alone”. It has become a convenient way for officials to act with indifference and dereliction without criticism. Primarily an economic doctrine, it opposes government regulation or interference so that business can operate according to its own rules.

This eighteenth-century doctrine favors capitalist self-interest as a means to obtain optimal prosperity and freedom. In fact, it benefits the wealthy to the detriment of others and classifies as a dangerous economic gamble that relies upon secrecy.

Calvin Coolidge expounded a laissez faire policy by proudly announcing that he minded his own business. His policies encouraged speculation that led to the stock market boom and economic crash of the 1920s.

George Bernard Shaw described laissez faire as the most tyrannous and disastrous of all orthodoxies.¹ It primarily forbids the accumulation of knowledge and allows government officials to withhold public records to hamper a free flow of information. It allows officials to evade their responsibilities and denies public accountability contrary to established law. [Conspiracy of Silence]

Laissez-faire policies inevitably lead to abuses. Businesses combine to control production and prices, then eliminate competition for the benefit of their owners. Non-profit organizations use laissez faire to benefit sponsors not the legal beneficiaries. [Elder Abuse - Introduction]

Silent withholding by government officials has always existed as a fundamental need for laissez faire to succeed. It has now become a basic tenet for media control and government propaganda in support of world economic policies. Virtual elimination of freedom of expression by allowing monopolies to control media and commercializing the academe have arguably become the most egregious uses of laissez faire.

Not only does the public have a right to know it also has a need to know. However, bureaucrats know the personal risk they take and do everything within their power to restrict access to public information despite laws to the contrary.

Government attorneys stonewall so that matters seldom get beyond the complaint stage despite laws that provide stiff penalties for withholding public records without a legitimate exemption. Officials make complaints economically infeasible by bringing blackmail law suits at the first inkling of a challenge to their methods. Only large media organizations can bear the brunt of these frivolous law suits or countersuits, however, most of them have now joined monopolies that would prefer laissez faire.

Officials procrastinate because they know that if a complaint gets to a hearing, the court will probably award costs and attorney fees. In Washington, the court has the discretion to award up to one hundred dollars for each day the official denies the right to inspect or copy a public record.²

State Records

In Washington, the law mandates full disclosure of public records limited only by precise and specific exemptions. Officials have an affirmative duty to reveal public information unless records fall within those statutory exemptions or prohibitions.

If exemptions apply that do not allow release of records completely, then officials may only withhold the portions that relate to the exemption. They must redact or excise the exempted portions then release the remainder.³

Agencies repeatedly deny lawful requests for public records by stonewalling and silent withholding. Officials know that they have no claim to exemption from disclosure so they either silently withhold the records, deny their existence, or play shell games by moving them from office to office.

Anything else construes as silent withholding - the deliberate attempt to thwart law by preventing access to documents. The law emphatically prohibits silent withholding and denial of access to public records without citing a specific exemption; yet state employees ignore laws with impunity. [Impunity]

Trial courts have clearly established that failure to respond quickly to a public record request construes as a denial. Washington Supreme Court ruled against the University of Washington for silently withholding public records. It found that:

Any agency's compliance with the Public Records Act is only as reliable as the weakest link in the chain. If any agency employee along the line fails to comply, the agency's response will be incomplete, if not illegal.⁴

In addition, Washington legislature enacted a comprehensive act relating to ethics in public service that implicitly recognizes silent withholding as an ethical violation.

No state officer or state employee may intentionally conceal a record if the officer or employee knew the record was required to be released under chapter 42.17 RCW, was under a personal obligation to release the record, and failed to do so.⁵

Case law clearly and emphatically prohibits silent withholding of public records by agencies and requires officials to describe any denial access with particularity.

The plain terms of the Public Records Act, as well as proper review and enforcement of the statute, make it imperative that all relevant records or portions be identified with particularity. Therefore, in order to ensure compliance with the statute and to create an adequate record for a reviewing court, an agency’s response to a requester must include specific means of identifying any individual records which are being withheld in their entirety. Not only does this requirement ensure compliance with the statute and provide an adequate record on review, it also dovetails with the recently enacted act.⁶

Yet, officials continue to blatantly defy both laws and legal precedent using laissez faire as a cover.

Government officials comply with sunshine laws only about half the time. 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, courts withhold transcripts and other records when many of them qualify as open records under state and federal law.

Federal Records

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.

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 personal goals, not the public interest. Appeal of unlawful behavior does not succeed because bureaucrats cover up for each other. Action only results from publishing names with details of transgressions.

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. [HUD-Seattle/BHA]

Privacy Issues and Agency Accountability

The basic principle behind free access relates to accountability. Information about individual private lives can hold authorities accountable. It encourages public oversight of public interest issues. Access to information eventually helps the public, not the press. Surprisingly, a vast majority of requests for records kept by the government emanate from individuals.

Individuals must accept responsibility for their actions. US Supreme Court has ruled that private facts in the public record can be disclosed without risk. The basic principle behind free access to information remains accountability.

If personal data has no legitimate public purpose then government has no business collecting it. In the conflict between privacy and accountability, individuals generally demand the former for themselves and the latter for everybody else which allows officials to play shell games.

For accuracy, journalists must identify to whom they refer and also to whom they do not refer. They should respect personal privacy as much as possible without compromising facts and identity. In this context, the evolution toward less privacy for public officials and greater privacy for private individuals relates to basic democracy.

Journalists must emphasize the public purpose of open records and the importance of preserving easy access to them. If they use public information, then any argument by the person about whom they write rests with the officials who collected it not with the reporter.

Privacy law does not limit media or individuals from using information. US Supreme Court recently affirmed this view in matters of public concern. The Constitution does not mention any right to privacy and disputes on privacy issues have always had common law resolution. Courts have only recognized a constitutional right to privacy against government invasion similar to the right against search and seizure.

In most states, common law recognizes that traditional privacy rights end with death. Most case law denies deceased persons any entitlement to privacy. They cannot remain anonymous and officials may not withhold public records using privacy exemptions. Ironically, HUD-Seattle/BHA demands notarized releases from deceased persons before they will agree to provide copies of public records.

Other courts have noted that participating in public affairs has an attendant loss of privacy. They have consistently ruled that people involved in newsworthy events forfeit any right to personal privacy. Moreover, identifying individuals in context provides information that the public should know.

Bonus! Two hours after [HUD-Seattle and Bremerton Contract Administrator] appeared on the Internet, John Frank Mitchell, a lawyer acting for Merrill Wallace II and Bremerton Housing Authority (BHA), effectively admitted that BHA had deliberately not processed FOIA requests and claimed instructions from HUD-Seattle as its authority. This implicated both BHA and HUD-Seattle in the FOIA shell game. JFM-05-0130-1441. Copies of your e-mails have been forwarded to me by Merrill Wallace the Executive Director of the Housing Authority of the City of Bremerton (BHA). I have reviewed those requests for information and also my records of your earlier requests for information. BHA takes your requests seriously and would like to comply with them; however, the information that you request is HUD’s information and not ours. We have been instructed by HUD not to respond and to direct you to HUD Seattle. Please redirect your request to the proper authority. By the way, I am not related in any way to Stephen Mitchell at Council House.

Bureaucratic Paranoia

Three principal reasons exist for open records and prompt compliance with laws governing them:

Personal. The public needs information to protect itself. That information covers family and property, sex offenses, crime, court actions, academic qualifications, building and zoning law enforcement, monitoring air and water quality, industrial waste discharge, 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 understand - especially significant in balloting on tax levies and other pecuniary interests.

Accountability. Open records prompt 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 and laissez faire 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 willful 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. [Supreme Court Review]

Conclusion

HUD-Seattle and their agent Bremerton Contract Administrator (BHA), City of Seattle (CoS), and University of Washington (UW), unlawfully withhold public records and continue that practice. They all had a part in this reporter going to jail for 111 days including 25 days in solitary confinement which partly resulted from an insistence on access to public records.

Now under Washington Supreme Court review, the case compares with the California case. However, it differs slightly in that Washington superior court jailed the reporter for civil contempt for coercive purposes whereas in California the judge convicted the legal researcher for 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. [Elder Abuse - Introduction]

In a recent New York Times article about sexual abuse by catholic priests, diocesan officials would not cooperate with media. They said that they had no reported cases of abuse in their dioceses but refused to comment upon any accusations against priests generally.

The paper did not name the uncooperative sources. That omission left matters open to conjecture because it reported endemic abuse and not isolated incidents as the church claimed.

The reporter should have named the dissenting sources to allow for follow-up and verification of church claims. If endemic abuse exists, then the names of those dioceses denying complicity should appear in print so that others may either question or investigate their statements. The fact that they have saintly aspirations does not mean that they do not lie.

Not identifying perpetrators of alleged crimes defeats the object of exposé. Absolute anonymity grants them impunity and allows them to continue their unlawful practices. Anonymity granted by a court restraining order has allowed Council House, Seattle, directors and administrators to increase elder abuse and create greater fear among their tenants. [Court-Facilitated Terror]

Free and open access to public records overcomes much suspicion and holds public officials accountable. Government secrecy and laissez fair policies continue to destroy the value and advantage of open government. Meanwhile, officials keep an increasing amount of public information under wraps to avoid responsibility for their personal actions or dereliction.

Case studies: [California] [New Jersey] [Washington]

[Nmesis]