Bipartisan bills introduced to WA legislature to limit public records lawsuits

Ted S. Warren/AP

Senate and House lawmakers introduced new bipartisan legislation Wednesday to limit the ability of the public to sue the Legislature and other government agencies for violations of the Public Records Act.

The legislation would amend the state’s Public Records Act and would require those requesting records to go through an administrative review process for records requests that have been denied or closed. The process would be required before the requester can take the denials to court for litigation.

Under the bills, reviews of denials would be due by agencies 10 days following a denial of inspection instead of two days, and that “shall constitute final agency action” unless requesters challenge the agency after the review.

Requesters would be required to petition the denying agency within 30 days of the records request denial or closure. Administrative reviews would then take place, and agencies would have 20 days to complete the review. Responsive records could then be handed over if the administrative review process finds that records were improperly withheld.

The legislation would require petitioners to exhaust “all administrative remedies” under the Public Records Act and then sign documentation stating that they are not requesting the records for any “improper purpose” before they can pursue any legal recourse.

“Improper purpose,” according to the proposed legislation, “means the request to inspect or copy a public record or to bring a civil action pursuant to this section is made primarily: To harass; to cause an unreasonable or a frivolous increase in the cost of government operations or delay in government action; in pursuit of an award of statutory fees, costs, or other monetary award; to cause a violation of this chapter; or for any other frivolous purpose.”

Language in the proposed bill was changed to note that requesters “may” be awarded “reasonable” costs, instead of the previous language of the Public Records Act that said requesters “shall” be awarded costs in the instances where agencies are found to be in violation of the public records law.

Civil litigation is the only recourse requesters in Washington can seek for violations of the Public Records Act.

Sen. Ann Rivers, R-La Center, is sponsoring SB 5571. Rep. Larry Springer, D-Kirkland, is the prime sponsor for HB 1597. Rep. Amy Walen, D-Bellevue, is co-sponsoring Springer’s bill in the House as well.

Walen told McClatchy Thursday that she is co-sponsoring the legislation because she believes public records lawsuits are an “enormous” cost to taxpayers. She said that in 2021, 133 court claims were filed costing agencies $7.2 million on litigation altogether.

She said the bill is designed to stop people who are “tripping up agencies,” and making an industry out of suing them. This legislation is a tiny policy fix, she said.

“I think the PRA is meant to be of benefit to people, not to have any sort of bad actors take advantage of the system,” Walen said.

Walen said the bill is “laser-focused” on those bad actors — people she believes wait for cities and counties to make mistakes so they can sue them. She said she also believes the 10-day window for denial reviews is more reasonable than the current two days.

McClatchy reached out to Rivers’ and Springer’s offices Wednesday evening but did not get a response.

This latest attempt by lawmakers to re-write the Public Records Act comes months after Arthur West, an open government advocate, settled with the state in Thurston County Superior Court for $40,000 for violations of the law. West initially sued the Washington State Redistricting Commission for withholding and deleting records. While the state admitted that public records were deleted by Commissioner April Sims, it argued in court documents that those records were not subject to the Public Records Act.

The move by legislators also comes less than a month after McClatchy first reported that state lawmakers are reinterpreting the state constitution to shield their public records using an exemption they call “legislative privilege.

At least one lawmaker told McClatchy that he was briefed on the new proposed legislation Wednesday and said he believed there was reason to be worried over the bills, given the most recent revelations regarding the usage of legislative privilege.

“I’m worried that the Legislature is going to be at war with the right of the public and news media to get public records this year,” said Gerry Pollet, D-Seattle. “Putting an obstacle in front of full and honest disclosure is never in the interest of democracy.”

The Washington Coalition for Open Government signaled the introduction of the bills in a Twitter thread on Wednesday, saying the two bills “take your breath away.”

George Erb, secretary for WashCOG, told McClatchy Wednesday that “imposing a required administrative review on records disputes would make it much harder for the public and the press to get timely information.”

In 2018, Washington lawmakers attempted to fast-track legislation, allowing no public debate, that would have exempted themselves from the Public Records Act. The legislation passed overwhelmingly in both chambers after less than 48 hours, but Gov. Jay Inslee vetoed the bill after public outcry.