How to keep government documents secret

The legislative agenda for the Washington Coalition for Open Government is a how-to for bureaucrats who don't want you to know what they're up to.
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The legislative agenda for the Washington Coalition for Open Government is a how-to for bureaucrats who don't want you to know what they're up to.

The Washington Coalition for Open Government has just released its legislative agenda for 2008 [456K PDF]. It's a wonky but enlightening read that shines a flashlight into the dark corners of bureaucratic behavior.

Anyone in the media or any citizen activist who has tried to obtain public documents knows that officials use a variety of tactics, some of them clearly illegal, to dodge state public disclosure laws. Sometimes it's as simple as ignoring requests. But often, it's more creative.

For example, in the 2008 agenda, the coalition seeks to "restore the original intent of the attorney-client communications exemption" to the state open records law. Some department officials have blocked the release of public documents by routinely making sure their attorneys are in the memo, e-mail or meeting loop, thus claiming that every document that a lawyer's eyeballs might have glanced is subject to attorney-client privilege – even if no litigation is involved. In other words, cc your lawyer and the public is blacked out.

Another loophole: using private contractors whose documents may not be subject to disclosure or who may be able, legally, to destroy documents the state would otherwise have to preserve. Or destroy public documents yourself and then claim they then can't be disclosed because they don't exist.

Another dodge: In the case of gas pipeline companies, claim that disclosure of pipeline mapping data would help terrorists, though the real threat being thwarted is watchdog groups hoping to verify compliance with safety rules.

Or the so-called "third party injunction" scheme. An agency gets a person named in a requested document – perhaps even an employee – to object to its release by the agency. The agency then fails to defend the release of the document. The injunction stands by default, the agency has left no fingerprints indicating that it actively blocked release, and voila, the document is still stonewalled from the public.

Then there's the old tactic of turning electronic documents into paper ones and then charging the requester unnecessary copying costs in hopes of scaring them off or burying them in paper.

The coalition's agenda includes establishing an independent ombudsman to oversee compliance with open government laws, fixing loopholes, making it harder to hide disclosure exemptions in the Revised Code of Washington (RCW), and increasing penalties for violating disclosure rules. And much more.

The non-partisan group is a dogged advocate of shedding daylight on the workings of government. Just reading their agenda is a public service. The current president is Toby Nixon, the former Eastside Republican legislator and Microsoft exec. Let's hope they have good luck in Olympia next year.


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About the Authors & Contributors

Knute Berger

Knute Berger

Knute “Mossback” Berger is Crosscut's Editor-at-Large.