Needed: a cheaper way to resolve open records disputes

Op-Ed: Other states have found that there can be a faster, less expensive alternative to lawsuits to resolve disputes over opening public records or meetings. Washington should follow suit.
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Rob McKenna

Op-Ed: Other states have found that there can be a faster, less expensive alternative to lawsuits to resolve disputes over opening public records or meetings. Washington should follow suit.

"The customer is always right," goes the old saying.

For businesses, it's a reminder that the person paying for a product or service should be served courteously and speedily. Otherwise, she might take her business elsewhere.

It's also an adage that all of us in government should keep in mind, especially when it comes to public records. A public-record requester is the boss. Along with other taxpayers, he pays the bills. Laws governing public records disclosure are expressly on his side. That's why someone who requests a public record is presumed to be within his rights under state law, even it turns out that some exemption (too many of which exist, in my view, but that's another subject) allows his request to be blocked.

While responding to public records requests can be time consuming, in some situations government agencies drag their feet when responding &mash; especially when the records might include information they would rather not share. King County has faced protracted lawsuits after failing to provide records. Those battles have cost county taxpayers a bundle.

In 1997, businessman Armen Yousoufian asked the King County Executive's Office for documents related to the public financing of a new football stadium. Yousoufian questioned whether a new stadium, rather than a remodeled Kingdome, was the right decision. The county didn't turn over documents for almost four years.

To date, the county has paid $299,246 in attorney's fees and $123,780 in penalties. This does not include the county's own litigation costs.

In 2004, conservative blogger Stefan Sharkansky asked for King County election records from that year's razor-thin, heavily litigated, gubernatorial election. Sharkansky wondered if the King County Elections Office had somehow skewed the results in a particular direction. Two years passed before the records were provided. Sharkansky sued over the county's dithering, winning a jaw-dropping $225,000.

These cases show that when it comes to public records requests, when government delays, you and your fellow taxpayers foot the bill. These two cases alone cost King County taxpayers over a million dollars.

Part of the problem is that when record-requestors are denied access to the files they want, or when they're shut out of a meeting that according to the Open Public Meetings Act should be open, they have two choices. They can either give up and walk away, or hire an attorney. Lawsuits are expensive and take years to resolve.

The good news is that there is a much cheaper and faster alternative for solving conflicts between those seeking public records or open meetings and government agencies: an administrative board that would quickly and at low cost rule on open government disputes.

An Open Government Task Force organized by the Attorney General's Office and the State Auditor studied states that provide an independent administrative review process to resolve complaints. These boards mediate open government disputes, investigate potential violations and issue rulings as well as advisory opinions. They also offer ideas about legislative reform and train public officials about their responsibilities under the law. Citizens can access this administrative mechanism without hiring a lawyer, and when they prevail, will obtain requested records and access to closed meetings. Expensive lawsuits would become far less common.

Responding agencies would also benefit: They would be able to ask for a ruling on a records request in cases where they are not certain if the requested records are exempted from disclosure, or if a meeting was properly conducted in executive session. Faster results mean lower costs and penalties for both parties, since penalties are calculated based on the number of days between denial of a records request and a decision that the records must be provided.

In this year's Legislative session, State Auditor Brian Sonntag and I requested legislation, prime sponsored by House Majority Leader Lynn Kessler, to create an independent Office of Open Government, with authority to enforce the Public Records Act and the Open Public Meetings Act. The bill received a public hearing and plenty of positive feedback.

But the new process has some upfront costs. And in a year dominated by a multi-billion dollar budget shortfall, anything with a price tag will have to wait. We'll be back in 2011 to try again.

This week, March 15-19, is National Sunshine Week, an initiative to spark conversations about the importance of open government and freedom of information. I hope that government agencies, both small and large, take the opportunity to improve their approach to transparency. Just as businesses assume that their customers are always right, let's assume that the public is always right about access to the records and meetings they pay to support.

Learn more about the AGO's work to promote open government at


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