Your right to know: Public-record law often disregarded

Part one of a series

When a woman entered the Grant County Sheriff's Department and asked for a list of registered sex offenders, a sergeant refused.

"I have no control over how it will be used," the sergeant said, giving an excuse that has no basis in law.

Either through ignorance or intent, the sergeant broke the law by refusing to release a document that the state's public-records disclosure law says should be available to anyone.

He was not alone.

A statewide audit of local public agencies found dozens of government employees who violated state law by withholding documents the law says they must release.

Starting June 21, reporters and other staff members from 25 newspapers and The Associated Press requested lists of registered sex offenders, reports on crimes, home values, school-superintendent contracts and restaurant inspections from agencies in all 39 Washington counties.

The reporters made the requests as ordinary citizens, identifying themselves as journalists only if specifically asked.

Audit results found agencies withheld documents often enough that Washington residents can't be certain that local government will give them information to which they're entitled.

State Auditor Brian Sonntag says any public employee who refuses to release legitimate information to the public has forgotten who the boss is.

About this series

Editor's note: During summer 2001, journalists from 25 newspapers and The Associated Press, acting as ordinary citizens, asked for copies of public records throughout Washington state. Their goal: determine how nonjournalists would be treated if they were to make such requests.
The stories offer a snapshot of how public officials treated people who sought records the public pays its government to maintain. The full series, distributed by The Associated Press, is also available on the Web at
Daily newspapers that participated were the Tri-City Herald, the Yakima Herald-Republic, The (Tacoma) News Tribune, The (Spokane) Spokesman-Review, The (Everett) Herald, The (Bremerton) Sun, the Eastside Journal, the Lewiston (Idaho) Morning Tribune, the Moscow-Pullman Daily News, The (Aberdeen) Daily World, the (Port Angeles) Peninsula Daily News, the Skagit Valley Herald, The (Longview) Daily News, The (Vancouver) Columbian, The Wenatchee World, The Olympian, The (Centralia) Chronicle, the Walla Walla Union-Bulletin, the South County Journal and The Bellingham Herald.
Participating weekly newspapers, organized by the Washington Newspaper Publishers Association, were the Davenport Times, Chinook Observer, The Journal of the San Juan Islands, the Goldendale Sentinel and The Wahkiakum County Eagle.
"Government isn't a private business or a secret club," Sonntag said. "It belongs to the citizens, and the public has every right to have access to records and participate in their government's proceedings."

Agencies that are supposed to enforce the law were the ones that most often disregarded it.

Police and sheriff's departments denied requests for information about property crimes at least 55 percent of the time, while sheriff's departments refused 16 percent of the requests to produce lists of sex offenders.

Health departments denied 8 percent of the requests for restaurant inspections; school districts refused to release superintendent contracts 12 percent of the time.

County assessor's offices were the only audited agencies that always released information. Real-estate agents and others frequently request home assessments.

There are many reasons someone would want records similar to those requested in the audit.

A group of residents might need information about area crimes so they could plan a neighborhood watch. Or so parents could keep children away from sex offenders by knowing what the offenders looked like and where they lived.

A restaurant-inspection report might be valuable for a couple trying to decide where to have a wedding reception or for diners trying to avoid a place with frequent health violations. And having documents such as a school-superintendent's contract can allow people to watch what their local leaders are spending.

"The bottom line is that people are entitled to pretty much any document that comes to my mind," said state Attorney General Christine Gregoire.

She said the state's public-disclosure laws were designed to make Washington's government one of the most open in the nation. "When (citizens) are denied unjustly, they feel completely disenfranchised from government," she said. "They lose trust."

Gregoire said agencies should err on the side of full disclosure, meaning if they're in doubt as to whether something should be released, they should release it.

But what often happens is that no one in the agency — or at least no one at the front office — knows about public-disclosure laws, Gregoire said. Her office and the state auditor's office are helping teach local-government officials how they should treat public records, but turnover often brings in new employees unfamiliar with the law.

A woman in the Jefferson County Sheriff Department's front office had said sex-offender information was "not a public record" and was available only to someone asking about a specific neighbor.

What the law says

"Public record includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. ...
" 'Writing' means handwriting, typewriting, printing, photostatting, photographing, and every other means of recording any form of communication or representation, including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated."
Undersheriff Jeff Sukert, an advocate for releasing details on sex offenders, said he was disappointed to find out someone in his department refused to do so. He promised his staff would get a review of the laws.

Some agencies said they didn't have enough people or were too busy to comply with the law.

"I'm sure they're understaffed," Gregoire said. "And it's resource-intense and costly. I understand that. But you know what? That's not an exemption in the law."

State law says that in releasing the information, agencies are not allowed to ask why someone wants the records or how they will be used.

If parts of a document are exempt from disclosure, the agency may redact, or black out, only the information that can be exempted. It cannot withhold the entire document.

For each piece of information withheld, the agency must cite the specific exemption of the law that was applied and explain how it was used.

The agency also must respond to each request within five working days.

In many cases, even when agencies released the audited information, officials demanded a reason for wanting the records — and some insisted on a "good enough" reason.

Many police and sheriff's departments have forms for people who request crime reports. The forms ask why they want the information and how they plan to use it. Many requesters walked away after being told they had to be involved in the crime to see the report.

That is not true, said Michele Earl-Hubbard, a media lawyer at Davis Wright Tremaine in Seattle. "Crimes are things the public has the right and the need to know about ... so people can protect themselves from becoming victims," she said. Law-enforcement officials can withhold only information that, if released, would "severely hamper" the investigation or violate a victim's right to privacy in certain instances, she said.

Police departments cannot withhold an entire crime report if only some of the information on it can legally be withheld, Earl-Hubbard said. State law allows for dozens of exemptions of certain records, including medical records, student-performance records, adoption records, materials protected by attorney-client privilege and some commercial and financial information provided to public agencies.

Rowland Thompson, who lobbies Olympia legislators on behalf of media interests, said agencies continue to pressure the Legislature to make more records exempt. "Our scuffles are not with elected officials; they're with the bureaucracy," he said. "They're the ones who get embarrassed, and they're the ones who try to get this stuff closed."

Although media groups make the most noise on behalf of public access, both Earl-Hubbard and Thompson said regular citizens should be willing to stand up for their rights.

A rigid and firm "No" from a government official can turn a regular person away without further argument, Thompson said.

"It stops them cold. They're intimidated," he said. "What are you going to do? Hire a lawyer?"

That's what Bonnie and Dan Olsen did when King County denied them a document relating to permits for a 45-acre residential development near their home.

The Kenmore couple fought for more than two years and won their battle in June, when the state Court of Appeals ruled the county violated public-disclosure laws by refusing to release the records.

"We were really angry at the county for ... not responding to our information request and for the corruption we felt was evident in the permitting process," Bonnie Olsen said.

State law helps people such as the Olsens fight public-disclosure battles by requiring agencies that lose such lawsuits to pay all court costs plus a penalty ranging from $5 to $100 for each day the records were withheld.

That provision, Bonnie Olsen said, was the only reason they pursued the request in court.

"You know, we need some sunshine in there to try to keep them honest. We can't get in there and be in the office and be in the meetings, but we can at least be reading the documents," she said. "If they're not ashamed of it, why conceal it?"