At its April 27 meeting, the Seattle City Council unanimously voted to exempt itself from a longtime (1972) Public Records Act requirement, with the declaration that indexing of public records would be "unduly burdensome.” Doing so may open up the city to a lawsuit.
What is “indexing" and is it important? In simplistic terms it’s a document map that lists where needed documents can be found if the City or the public needs to find information. Seattle based its decision to “not index” on an exemption provided in the State Public Records Act that recognizes that not every single record kept by government is essential for preservation or may be too difficult to find. But that same provision is specific about which records must be able to be located and which not. Seattle’s legislation excludes indexing.
In a joint open letter dated March 12, 2009, Attorney General Rob McKenna and State Auditor Brian Sonntag wrote to the City and other jurisdictions urging, among other things, that “public disclosure [is facilitated by] indexing agency records electronically to speed retrieval and disclosure."
In an e-mail (which, by the way, will be automatically deleted in 45 days), Council president Richard Conlin affirmed that the City Council looked to Federal Way, Kent, Spokane Valley, Yakima, Kennewick, and Snohomish, Pierce, and Kitsap Counties for advice on the indexing of documents, leading to the decision not to index. However, the exact opposite advice is provided by Secretary of State Sam Reed, State Archivist Jerry Hanfield, and State Attorney General Rob McKenna. They have provided directives as to how Washington cities must comply with the State Public Disclosure Act. While the Secretary of State and the State Archivist regularly provide seminars on compliance with public disclosure law, Seattle’s new special committee on open government has chosen instead to follow other cities rather than the recommendations of state officials.
Not keeping an index, or map, of where documents are kept gives the a City an excuse to deny a request for information. The lack of an index makes documents more difficult to locate. Therefore using the exemption offers a loophole for a City to deny release of a piece of unfavorable information.
Such was the argument advanced by King County when Armen Yousoufian, a citizen, asked prior to an election to view King County records pertaining to the financing of the new stadium. King County claimed they couldn’t find the records and therefore couldn’t be held responsible for not making them available. Yousoufian took the matter to court and in multiple court decisions he won a judgment each time. The case went all the way to the Washington State Supreme Court, where Yousoufian won again.
The judgment cost the county thousands of dollars. Had King County properly labeled (or indexed) the records it would never have happened, unless of course Ron Sims lied and intentionally withheld the records to prevent possible bad publicity before the election.
A directive on public disclosure compliance prepared by Attorney General McKenna makes clear that every single record or document need not be indexed for easy retrieval , only very specific kinds. McKenna’s directive is based on the precise wording of the exemption stated in the law. Council President Conlin comments on indexing: “The one place that we think is impractical is the central index, which we can't figure out how to make work in terms of the resources required to make it truly useful.”
Handfield, the State Archivist in the office of Secretary of State Sam Reed, has transformed the state's record keeping and records to reflect current technology by building in Cheney, Washington a new center for the storage of electronic records. State law requires records from cities, not just the state, be archived. In Handfield's orientation sessions for cities, he urges them to create a good index, advising that by doing so it makes record searching easier and less expensive.
Seattle’s special committee did not indicate if they attended Handfield's briefings or if he was invited to give testimony in the preparation of Seattle’s legislation. Handfield advises cities it saves money if indexing is accomplished. This might be especially important if a city claims they can’t find a record and a petitioner goes to court and wins a large judgment against the city. This was the case in the small town of Mesa, Washington, which is facing a $228,905 fine for failing to comply with a simple request for information.
Handfield pointed out that new search engines like those used by Google can search millions of records in seconds. Even the kind of hard drives an ordinary citizen can purchase could store a year’s worth of e-mail or documents that a city might generate. Consequently there is no need for Seattle to purge its e-mail records after 45 days, as Seattle intends, since the days of inadequate storage capacity are long past.
Many other aspects of Seattle’s efforts to improve transparency in government are worthy of note and clearly a step in the right direction, but the advice given by council staff along with the choices made by Federal Way, Kent, Spokane Valley, Yakima, Kennewick, and Snohomish, Pierce, and Kitsap Counties might be reconsidered in light of the financial liability for Seattle if a record is requested and the City can’t find it. King County and the tiny town of Mesa found that saying they couldn’t find the records was a very poor and expensive decision.
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