WA lawmakers consider limiting the legal action people seeking public records can take

State lawmakers and city leaders are trying to limit the public’s ability to hold them accountable for violating the Washington Public Records Act under a new bill heard in the House State Government and Tribal Relations Committee Wednesday, Jan. 24.

The bill was introduced by Rep. Joe Schmick, R-Colfax, and co-sponsored by Rep. Cyndy Jacobsen, R-Puyallup.

Schmick told the committee that he introduced the legislation because public records issues are one of the topics that comes up “repeatedly” when he has discussions with city councils around the state.

“The goal of this policy is not to impede or delay the production of records. Rather the goal of this policy is to prevent bad actors from using the Public Records Act as a means for financial gain from frivolous lawsuits at the expense of taxpayers, especially small municipalities,” Schmick said.

Currently, the only remedy for Public Records Act (PRA) violations by elected leaders and other agencies is a civil lawsuit. Under the proposed legislation, records requesters would have to go through a lengthy administrative process first before seeking legal remedies for requests that are denied or incomplete.

The bill would require all requesters “to exhaust all administrative remedies” before the violations could be brought before a judge. The proposal directs individual offices and agencies to establish their own processes for an administrative review in order for requesters to appeal a denial or closure of their records request.

Requesters also would have to sign documentation stating that they are not requesting public records for any “improper purpose” before they can pursue any legal recourse.

“Improper purpose,” according to the bill, “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.”

Additionally, the bill would make changes to the amounts that a court could award to a requester when agencies or officials violate the PRA. Courts would be required to consider multiple factors, including if they believe government entities worked in “good faith” to provide the public records to a requester, when determining an award amount.

State lawmakers would not be the only beneficiaries of the new proposed legislation, as “agencies governed by the PRA include all state offices, departments, divisions, bureaus, boards, and commissions, and every county, city, town, or special purpose district, as well as their associated offices, departments, divisions, bureaus, boards, and commissions,” the bill language notes.

Many signed in to testify against the legislation including open government advocates and current and former reporters.

Juli Bunting, the executive director for the Washington Coalition for Open Government, testified that “lawmakers who are committed to open government and transparency” should join the coalition in opposing the bill.

“The state seems to be moving in a dangerous direction when it comes to government accountability and allowing citizens to access information,” Bunting said. “This legislation is yet another move towards secrecy. Let me be very clear: We understand and are sympathetic to local officials who are frustrated over disclosing public records, but making it more difficult to access records is not the remedy the state wants.”

Bunting suggested another alternative: properly funding and training officials in public records offices.

“Public officials work for the people. Public records belong to the people, not the government,” Bunting said.

Kathy George, a public records attorney, said that the bill would harm news media and open government advocates by slowing down processes for retrieving records. She said she’s concerned with the notion of “substantial compliance” added to the bill, as courts have previously ruled that the PRA requires “strict compliance.”

George told the committee that courts have broad discretion as it is now to determine award amounts in PRA cases, and courts have tended to be conservative when determining penalty awards. She said there have been very few instances when an agency has been found to act in “bad faith.”

She said what is important for courts to honor is the “voter-approved principle that prompt disclosure is a fundamental key to public participation in democracy.”

Schmick, the lawmaker who introduced the bill, testified that a “spree of frivolous public records requests is costing a lot of our small governments and organizations dearly.”

But George pushed back on the claim, noting that only a small percentage of public records issues ever end up being litigated.

“Litigation is pretty rare, it’s by far the exception to the rule,” she said. “Most requesters just want to get their records quickly, they just want to be done and they don’t want excessive redactions.”

Still, some testified for the bill.

Candice Bock, director of public relations for the Association of Washington Cities, said that it took courage for her organization to bring the bill forward to Rep. Schmick, and that she believed the bill is “much needed.”

“The goal with this legislation is not to impact records requests and access to records — cities have shown and invested a lot in their commitment to open, transparent government in providing records. This is really to try and address those times when the Public Records Act is being used as a weapon as opposed to a tool for public good,” Bock said.

She said the bill would serve as a “check and balance” during the administrative review and that judges would have greater discretion in dealing with litigation. She said small municipalities often cannot afford litigation, resulting in quick settlements that cost taxpayers “thousands of dollars.”

Last year McClatchy and Crosscut teamed up on a report to show how organizations such as the AWC have a major influence on legislation, such as when they worked to kill a key middle housing bill in 2022. AWC also brought similar legislation forward in 2023 to limit public records lawsuits, but those bills did not make it to a public hearing.

The latest attempt for lawmakers to curtail the PRA comes as lawmakers in the Legislature are in the midst of two lawsuits over their use of “legislative privilege” to withhold records from the public. While two Thurston County judges ruled that lawmakers can use the privilege to withhold records in the two separate cases, plaintiffs in both cases will likely combine lawsuits to appeal the decision at a higher level.

The bill also follows other attempts by lawmakers seeking to undermine public records laws in the state.

In 2018, lawmakers completely bypassed the bill-making process to expedite legislation that would exempt them from the state’s Public Records Act. A bill introduced during the legislative session that year was only public for 48 hours before both chambers of the Legislature passed it with overwhelming approval.

After no debate, the measure passed the Senate 41-7, and the House with 83-14. Gov. Jay Inslee vetoed the bill shortly thereafter due to public outcry.

In 2017, a lawsuit was filed by The Associated Press after the outlet was denied “sexual harassment reports, calendar entries and other documents.” Other media outlets also signed on in support of the lawsuit.

The Washington State Supreme Court voted 7-2 in favor of AP’s lawsuit in 2019 to reject “lawmakers’ assertion that they are not required to turn over daily schedules, emails, text messages and other materials related to their work,” and said that lawmakers were in fact subject to the PRA.

Additionally, a work group tasked with making public records recommendations to the Legislature almost fell apart last year after members grew frustrated with their recommendations being ignored by lawmakers.