The Times - Serving Waitsburg, Dayton and the Touchet Valley

There have been many times over the years that I have put on my reporter hat (OK, I don’t actually have one, that’s just an expression), walked into a government office and asked for a copy of something. It might have been meeting minutes from the city council or a “probable cause” document from law enforcement.

I cannot think of a time when the person I made the request to wasn’t friendly and cooperative. And I always tried to be the same. If the minutes weren’t ready yet, I agreed to come back later. I’ve never felt like someone tried to hide something.

It turns out though that even those casual verbal requests I made were subject to a Washington State law called the Open Records Act. And if I wanted to, I could sue one of those agencies, claiming that a year or two earlier they had not responded to a request I made. And according to the law, I might be entitled to up to $100 per day in damages – plus legal costs. That could add up to a lot after a couple of years.

This is the kind of scenario the Town of Starbuck is facing right now. A lawyer from Spokane named Stephen Kirby is suing Starbuck in Columbia County Superior Court for thousands of dollars – including legal costs – because he claims they never responded to two letters he sent in 2014 requesting some public records. (See story on Page 5.)

The city claims they never received the letters, and besides that, there are no documents that meet the criteria he asked for. Nevertheless, Starbuck has incurred thousands of dollars in legal fees to defend itself, and the case has yet to be resolved.

Open government is absolutely essential in a democracy, and laws such as Washington’s Open Records Act are very sweeping in the obligations they place on government agencies to make records available to the public. But how much can these laws be abused?

To learn more about all of this, I sat down last week with Columbia County Prosecutor Rea Culwell, knowing that she is the point person for many of the requests that come into the county.

“They take up a ton of time,” she told me. “In fact I was working on one when you arrived.”

Culwell said that Columbia County receives many public records requests each year. In fact, there’s a link on the county’s web site that allows members of the public to submit them. Public records requests have become much more numerous in the past fifteen years, she added.

Culwell said that most PRRs are for a legitimate purpose, but sometimes the volume of documents requested is huge, and each one must be checked, in case they contain information that is confidential and exempt from disclosure. Also, three or four times a year, the county will receive a request in which she feels that the requester was purposely trying to trick an agency into making a mistake, so a fine can be issued.

“To my knowledge, the county has never been fined over a public records request,” Culwell said.

Culwell said that last year she received a request for copies of all of her emails sent from her office account. She spent many hours going through them to redact any information that was exempt from disclosure. A few months before that, she said, she was asked by someone for copies of all of her emails that contained swear words. (I’m not making this up.) She complied with that request, and I got the sense that there might have been more than one or two.

Just this week, the state legislature is considering a bill that would make changes to the Open Records Act, which is described in the WNPA article on Page 5. This is aimed more at requests for huge volumes of records, often by for-profit data companies.

But I think there’s another issue, and that is that the incentives are whacked. A law that calls for a fine up to $100 per day to be paid to the aggrieved party, is just inviting parties to become aggrieved.

And a small town like Starbuck is not going to have the resources to fight a lawsuit in court. It will therefore feel obligated to settle its case for a few thousand dollars. No doubt this is the kind of situation at least a few public requesters are counting on.