A bill in front of the Washington Legislature, HB 1128, would be a lousy deal for the public and a sweet deal for city governments. Having been an elected official for eight years, I’m sympathetic to people in city governments. But the public always has to come first. That’s why I stand with the Washington Coalition for Open Government on this one.
The bill comes from the Association of Washington Cities, a trade group that represents cities. Their stated concern is that some citizens are using the public records act to harass cities. There’s no question this is true. The public records act is a tool. Tools can be used in many ways. Tools can be used for many reasons. You can use a tool like a hammer for something good, like framing a house, or something bad, like hitting a kid.
Of course, most uses of a tool are usually good. With the public records act, some people request public records from government to discover information and sometimes uncover abuse or other issues that deserve to be known to the public. Yet like a person who might use a hammer to hurt someone, other people file public records act requests because they are angry at a person or city. They are unhappy with government, and a deep overly broad public records act request is a great way to create discomfort and disruption.
Meanwhile, still others compulsively seek records because this is how their craziness comes out. One thing you learn about serving in government is that power attracts the attention of the kind of people who used to be buried in anonymous graves outside Western State Hospital.
But exceptions should not drive the rule. And the rule, also known as the First Amendment, is clear:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
To the discomfort of anyone supporting HB 1128, the First Amendment does not say this…
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances unless someone in the government thinks the person is creating inconvenience or being nasty.
If it did say that, HB 1128 would be constitutional. Meanwhile, here’s another rule. This is what the Washington state law actually says:
The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected.
To the discomfort of those supporting HB 1128, state law does not say this:
The people of this state yield their sovereignty to the people in the agencies that serve them. The people, in delegating authority, will receive information if they ask nicely and don’t offend anyone in government personally or professionally. The people will wait to be told in case any information might be uncomfortable to anyone in government and certainly wouldn’t want to trouble anyone in government to provide the information if it’s a lot of work. This chapter shall be liberally construed for the convenience and personal satisfaction of those employed by government so they may enjoy their experience in civil service or public office.
The poster child for people who want to limit your potential access to records is a city councilwoman from Pasco who was the subject of public records act requests after voting a way someone didn’t like. Do I think it’s cheesy to retaliate against someone in public office that way? Absolutely. Very much so. But does that mean you limit the unhappy citizen’s right to ask for records? You can’t. Because when you do that, you limit everyone’s right.
This brings up a final thought that I can share having been a city councilman. I learned this the hard way. There is one other thing the law does not say. Nowhere is it written “Your experience as a local elected official will be pleasant.” Fact is, people can make you very miserable as an elected official if you let them. People get personal. People get nasty. When you are an elected official, you are a target. The way you address that is to deal with challenge and stress like an adult – not try to gut the public’s right to know what’s going on in government.