Open Government 2023

Northwest now is supported in part by viewers like you.

Thank you.

Lawmakers convene in public, but open government advocates complain that their real efforts are focused on operating in secret.

In 2018, an editorial and voter backlash prevented lawmakers from exempting themselves from the Public Records Act.

But now, five years later, they are at it again.

The battle to keep your public records public is next on Northwest.

Now.

Next week is something called Sunshine Week, where the media puts a spotlight on the seemingly obvious virtues of open meetings and open records.

But there's a reason I do this show every year and this year.

That reason is that lawmakers have quite literally invented a legal opinion that says they have a blanket exemption from the Public Records Act or PRA in 2018, they tried to pass a bill to exempt themselves.

This time they're just doing it by fiat, rejecting records request, citing a legislative exemption that legal observers say has been invented out of whole cloth.

On top of that, lawmakers proposed several bills seeking to further restrict access to public records and reduce accountability for violating the PRA.

Why does it matter?

Because as Northwest now contributor Steve Coggins tells us, open records are crucial to holding policymakers accountable as was a recent case involving a KUOW radio investigation into who gave the order to abandon the East precinct when the city's law enforcement and civil chains of command failed during the violent summer of 2020.

And it's a question that everyone had.

I mean, it wasn't just ice.

It was like a big question for everyone in Seattle.

KUOW reporters Ashley Haruko and is all the Raftery found themselves covering one of the most consequential protests in Seattle's history in 2020.

And searching for an answer to a question everyone was asking.

Who made this call?

Like, who the heck made this call?

In early June, demonstrators in Seattle police faced off night after night as pretty worried activists just might set the East Precinct building on fire.

Police stations have been ransacked or destroyed in other American cities during protests.

City leadership claimed they wanted to ease tensions, choosing to give up ground for protesters beyond the East precinct.

Removing the barriers was critical to removing the flashpoint.

And if there were the safety concerns for people in the building and the equipment.

But that is not the equivalent of abandoning the station.

On June eight, 2020 officers removed property, left the building and locked the doors, all without seeking approval or notifying then Mayor Jenny Durkan or city chief Carmen Best, who said no.

Leaving the precinct was not my decision.

Best shared this message of steadfast support for the rank and file three days after the East precinct was abandoned.

Later the same day, Bass joined Mayor Jenny Durkin's media conference, but stopped short of identifying who made the call.

The decision was made to, you know, as officers were taking things out of the precinct, they didn't want to come back into the precinct, and many of them did not.

So we're still going to evaluate exactly the pin of what what, why that changed.

But it didn't come from me.

Mayor Durkan also deflected blame.

Soon, surrounding streets were occupied by activists, as police says emergency response times tripled after leaving the precinct.

During the closure, the department released surveillance videos showing people trying to set the building on fire and others showing the escalating gun violence on Capitol Hill.

Within a month, SBT reclaim the precinct.

It would take more than a year of waiting, multiple interviews and sifting through thousands of public records.

Request for KUOW to finally answer who made the call to flee the station.

This decision made way for CHOP, which is unprecedented and historic.

Then, at a political level, you could probably draw a dotted line between this decision to leave East Precinct and Chief Best's resignation a month later, and then also Mayor Jenny Durkin's decision to not run for reelection.

But also, it's a question that the community has had.

Who made this decision?

It wasn't the police chief.

It wasn't the mayor.

And it turns out it was the incident commander and his team who did it on their own.

That's like a time in Seattle history that people are going to remember for years and years and years.

Right.

And what happened?

It's nice to be recognized for their dogged determination seeking truth.

KUOW Was Haruko and Raftery were recognized with key awards from the Washington Coalition for Open Government.

The Coalition insists the reporting helped Seattleites see through the chaos and hold the powerful to account.

But Raftery says what happened in early June 2020 reverberates until today.

There are so many reasons why it's hard to kind of unpack what has happened, but it has been really demoralizing, frankly, for all city leaders and for our police.

Steve Higgins for Northwest.

Now, a lot of our discussion tonight focuses on the legislature's attempt to neuter the press.

But every year there's a new laundry list of government and agency violations, all of which you pay to litigate and then pay again to award the plaintiffs.

Seattle got slapped with $800,000 in judgments for deleting texts related to the management of the CHOP crisis.

The Washington State Redistricting Commission paid $400,000 for operating in secret, just to name a few.

In fact, lawmakers complain that in 2021, governments and agencies spent $7 million on para violations.

Some lawmakers say the answer isn't to just obey the law, but rather to get rid of the law.

That's your right to know.

Likely being lobbied against by the city you live in and the lawmaker that represents you.

A quick second here now for disclosure.

I am a member of the Washington Coalition for Open Government.

Joining us now are Mike Fancher, former Seattle Times editor and the president of the Washington Coalition for Open Government.

John Mell, a Washington Coalition for Open Government attorney who represented the coalition in the redistricting commission lawsuit, among others.

And George Erb, a Washington Coalition for Open Government board member and a longtime journalist and journalism instructor here in western Washington.

Let's talk about legislative privilege.

That has really been the item that has dominated the discussion about government transparency, both in the media and among members of the Washington coalition of for open Government.

Didn't we resolve this several years ago with a big editorial fed in the Supreme Court, ruled on what is going on, what is legislative privilege and what's why?

Where are we getting it again?

Well, I'm glad we're going to talk about it because maybe I'll find out what it is.

We're baffled by it, too.

Yes, the legislature was pretty well served up on a platter a few years back as to its need to be accountable to the prior Public Records Act.

And yet we get this kind of a secretive declaration of a legislative, personal legislative privilege.

And it only came to light because requesters were getting denials for information, citing legislative privilege.

And we ask ourselves, what what is that that they're talking about?

We think it's made of whole cloth.

We don't think it is legally sound.

They seemed to legislate some legislators, not all, and the attorney general seemed to disagree.

So we'll we'll find out.

But essentially what they're saying is that if a request is made of an individual legislator for a record in which that legislator is named or has participated, they have an option of withholding disclosure.

And it's a personal they say it's a personal individual option, which means I might say, sure, here's the record.

John might say, oh, no way.

How does that manage itself?

Because we've had some lawmakers come through and some have not.

Yes.

And they've even changed their minds.

They've denied, you know, they've redacted information and then gone back and made it public.

So it's and sadly, this is happening without any public debate about the issue.

Right.

Last one reason.

Last time, at least, it was an attempt to pass legislation.

Exactly.

This time it's just, hey, here's what we're doing right?

Exactly right.

John, what's the recourse?

Well, the recourse is to get into court and see if there's a judicial remedy and and that we can find a judge who says, no, there's nothing in the press that allows you to withhold documents.

I think that the irony of it I don't know if you know this, but the true irony about that is I would be in front of a court right now if I could get into court.

But they have a deliberative privilege that prevents me from even naming them in a lawsuit and serving them and asking for judicial relief.

So they have this ultimate dead zone around them when they are in legislative session that allows them to deliberate.

And you're not supposed to sue them during that time frame.

And they know that.

And so they're writing it out in hopes.

I think, that we will disappear and not be on them as soon as we can serve them, which we'll be signing day.

We'll be there saying, We want you.

Here comes the hammer.

Right.

Have any secrets that we don't serve?

So, yeah, it's and hopefully a judicial remedy is enough.

I think that the frustrating thing that I've experienced as a litigator in this arena in recent years is that I'm dealing with courts and judges who are so much part of the government process that they seem to be fairly sympathetic with policymakers who want to keep secrets.

And so it's about accountability.

Who wants that, John?

Yeah.

Well, you know, I don't know people who want to know what are officials are doing, but I guess we're getting officials who say we have secrets.

And how dare you ask us even.

Yeah.

Even in the legislative process.

Even in the legislative process, when, you know, there's some very experienced legislators, there are some of whom are colleagues of mine, and we'll get to that.

Yeah.

Frightening.

Yeah.

Yeah.

George, the question coming out of this first round for you is Danny Wesley wrote a column and I and I think correctly brought the same question up I've had in my head.

And that is what does this porte in this continued quest for secrecy and and a lack of transparency on the part of Ledgett, the legislator, the legislature trying it five years ago with the actual legislation, trying it this time by just sort of impose easing, imposing this privilege.

Where do you think this is ultimately heading?

Why is this happening?

It's worrisome.

And Danny raises a very important point, and I'm glad that he brought it out and introduced it to the rest of us.

I mean, there's a through line that runs through this in the legislature.

And let me kind of just lay it out briefly.

Every year, the state legislature passes new exemptions to the Public Records Act.

In 2018, the legislature tried to exempt itself from the Public Records Act and failed.

The following year, it fought all the way to the state Supreme Court, a court case that ultimately ruled against the state legislature and said individual lawmakers, you know, are subject to the Public Records Act.

Last year, you know, they started imposing this quietly imposing this new, untested, unsupported claim of legislative privilege to withhold whatever record they want.

So the through line on it is, is that the legislature is, you know, at minimum dismissive of open government and at times really openly antagonistic.

And it's worrisome.

I think we're going to see the death of the Sunshine Committee.

It's possible.

It's possible.

The state legislature has not adopted any of the Sunshine Committee's recommendations for four straight years, say for years.

Yes.

And it looks unlikely that they're going to do it again this year.

So if the if the legislature is not engaged with the Sunshine Committee's recommendation as well, the Sunshine Committee's work is essentially pointless.

And now a little controversy.

Joan, you you started in answering this.

I'm going to ask you directly.

And first, I guess I'll out myself.

I'm a little surprised that the Democrats are the ones who are at the forefront of this secrecy movement.

Are you a little surprised by that?

Am I naive?

Should we be surprised?

Is that the political class against everybody else help me analyze myself?

I don't love it.

I don't have an answer for it.

I think it's just shameful.

It's, you know, people who believe in I mean, I know.

I know.

Laura Jenkins, I went to law school with her.

She's been a colleague for years.

And to see that she's done so well with her trajectory career wise in advocating for people that she believes in and to think that she now wants to keep that secret and to herself in private, it's shameful.

I mean, there's nothing there to hide.

I don't know why it's the Democrats doing it, other than I think they're feeling somewhat powerless and somewhat in a position and feeling the need to to say, we don't really want to know how we pick and choose among who we bless with our policies and and what we adopt.

We've got all the power and now we like it.

The answer I give to myself on that is it's not a deal or an issue.

It's a single party rule issue.

It's a power issue.

It's a power issue.

Mike, what's your analysis of that?

Well, I would I would agree with that.

I would also point out that the legislature seems to be increasingly sympathetic to people who are trying to other smaller governments trying to close down their records.

And every session somebody comes forward and says, here's something that could be a problem.

We need a broad sweeping closure because this could be a problem instead of the spirit of the law would be if there is a real problem, make this the exception as narrow as it possibly can be.

They're getting a lot of sympathy in the legislature and there's a lot of sympathy for trying to close off, make it harder for people to request records and get rich.

And let's face it, it's not somebody.

It's probably the city or the county you're living in.

Yeah, absolutely.

Oh, yeah.

From from Seattle to to Tri-Cities, wherever it is.

Through their associations in Olympia.

Right.

Yeah.

Here's another little controversial piece.

Arthur West, a well known long time litigator on all issues.

Open government is one of a lot of judgments from a lot of various governments for not disclosing public records according to the law.

He is held up as an example of this is costing us too much, too much money.

I guess, you know, let's face it, Arthur has a little cottage industry going if you don't like it.

What is the solution to that?

Don't let Arthur Best do on the rules that you control.

Give him as his records.

I mean, the the games that are played to avoid disclosure are mind boggling.

And we have a real problem in Washington.

Under the leadership of the attorney general's office, Bob Ferguson has failed us and he's failed us tremendously.

He is adopting and setting rules that are strategically designed to push people away and force closure of public disclosure requests and prevent access to information.

I mean, when you have the attorney general of the state of Washington snail mailing records to you, rather than providing them electronically and making them readily available and closing request when the agency knows that you want them and helping every other agency in the state of Washington, including his fake ombudsman, to withhold records.

It's turned on its head and we've got problems.

And the only way that we can hold agencies accountable and people like Bob Ferguson and his leadership role accountable is the Arthur Watts of the universe.

Right.

But for Arthur West, we wouldn't have a number of the cases that we have setting precedent.

He's got the time and he takes the time.

And I think that's what's so important, the amount of time it takes to hold government accountable and get what you know should be there is phenomenal.

And it takes people who are willing to rub up against the establishment and ask the question and follow through.

And if they would just do it, there would be no annoyance with Arthur.

Well, he's actually a really nice guy.

He's very amenable.

He's easy to talk to, and he just wants the law to be applied correctly and he just wants access to information.

And we got a hold.

I mean, I think if everything that we want more than anything is the the public to weigh in and say, no, Bob, you're not going to be governor if you act like this.

I was going to say, and this is potentially a governor of the state of Washington, he's got to not be elected governor of the state of Washington if he's going to act like that.

And it's totally dependent upon the public weighing in and saying no.

Transparency matters to us.

George, what are your thoughts on this, particularly when it comes to, you know, there's a fine line.

One of the big problems with this, there's a fine line between the Arthur Weston the world and some gadfly in some local municipality, county or city or drainage district who is just shelling the the small staff there with public records because they have an ax to grind.

Somebody didn't pick them to play on their soccer team or whatever it is.

And here come the public records request.

The problem with that is the legislature is using those examples to hang legitimate requesters, to put those around their neck and and to do what they're doing.

How do we get that question right?

And is it just a bitter pill?

We're going to have if we want open records, we're going to have to clear the way for gadflies, too.

How do you see it, though?

I mean, the argument that we make and we've been trying to educate the public as well as public officials about this, is that the approach that agencies take to to to litigate these disputes with records, requesters is really all wrong.

I mean, the standard response for agencies is to litigate it aggressively.

Lots of lawsuits, lots of lawyers expense drive up the costs.

Right.

You know, make it take more make make everybody spend more time and money.

Now, the downside of that is it drags everything out, but it also increases the costs for the municipality, for the for the government itself and for the taxpayers.

So it ends up doing nobody, helping nobody.

And and if they just basically turned over the records, just say, oh, sorry, we made a mistake.

Here's the records.

The problem goes away.

You know, they don't have all that time and all that expense and all those billable hours to municipal attorneys who are representing them.

Right.

Which which I always make the point to that taxpayers are paying for.

And then when they pay the judgment, guess who's paying for that, too?

Exactly.

And there's no there's no sense of accountability.

But lawyers for years have figured out how to play that game.

You get into civil litigation.

What's the worst thing you can do to the opposition?

You've seen the movies.

The banker boxes are all them in.

Just give them more than they ask for.

Open the door and have all of it.

And quit getting so worried about.

Oh, I need to review every single page and make sure that I don't waiver privilege.

Don't worry about the privileges.

What are they going to do with it?

It doesn't matter.

I mean, you're not you're not creating this landslide debtor delirium or is or I don't even know what.

What's the right bad outcome?

Deleterious.

You know, the earth is not going to fall apart if you somehow miss a word that you think should have been privileged.

It's transparency.

Is the is the preference to just give it to him.

Yeah.

Upload it.

And I've asked Mike, I've asked this question before.

You worked a long time as a journalist, obviously, with The Seattle Times.

Why is it that lawmakers and people in charge of things are so afraid of letting us see something other than theater?

Why can't we see the sausage be made if I've always thought if I was a lawmaker, I'd want to I'd want to be very transparent because I want to be able to say these are some hard questions.

I see this and I see this.

I'm going to give this a try.

Here's why I'm doing the best I can.

That, to me, seems like the most defensible stance a lawmaker could possibly have.

But that's not what we see.

Why is that?

Is it a training issue or what is it?

I think it's an insider issue.

I think that you get into those chambers and there's this sense of what we're doing is so important that we dare not share it with anybody else.

I mean, you see that from the University of Washington through various governments.

It's that it's kind of an insider mentality and they think they're protecting the public interest by excluding the public from the process.

They don't want to be the bad guy.

Yeah, they're conflict averse and they and I think this is where the D part comes in.

They're woke and welcoming.

How can you be walk and welcoming when you're saying, I don't agree with that policy, I'm going to go with this or I'm not going to pass that legislation, I'm going to send out you and then I have to look at you and say, I don't like you.

It's supposed to be about seeing the alternatives and trying to come up with the best policy choice.

And sometimes it is the lesser of two evils.

Sometimes somebody lose somebody does have to experience a little pain.

But if you're transparent about that, say, listen, I recognize this is going to cause some pain to business owners or whatever it may be, at least at least you're transparent.

To me, that feels I don't have to remember the story I told you.

You know what I'm saying?

I can just live my life without having to recreate the Kabuki theater and how I got there.

Am I naive?

Probably.

I think there's a lot of people who don't want to say what they think when they think they're not saying what they think when they're using signal.

Now that they're using, you know, the disappearing ink and and other text or digital formats and then they can just be themselves.

I think they want this sense of safety, too, to really express that they have strong feelings one way or the other about something.

They don't want somebody to call them on the carpet for having an actual genuine thought or feeling that might be offensive to somebody.

I do want to say I really deeply admire people who go into public service.

I mean, in my journalistic career, I always admired the people who were in public office, whether they're staff or elected officials.

They have a tough job to do.

But I think there's a paradigm shift that they need to make about what is the job.

They'll say, well, this these requests are getting interfering with our ability to do the job.

No, that is your job, making it making it possible for the public to participate actively in these processes.

That is the job.

Or influence decision making.

Yeah.

I mean, that's what we are wanting from our elected officials.

We want to be able to influence.

And what's wrong with sharing your thinking, George?

I mean, why can't I sit here and tell you what I.

What's the.

What's the downside?

Well, as long as I'm not crazy, but I mean, if we're having, you know, I mean, you can definitely go off the rails, But if we're having a legitimate policy debate, what is the problem?

I think that transparency kind of comes with its own virtuous feedback loop.

Yeah.

You know, if you're transparent with the public, then the public basically knows what the options are before before it's public officials, they can basically provide input.

Do it this way.

We don't like it that way.

Which tweak it here.

Do it this way.

No, it's a bad idea.

Forget about it.

But in without that virtuous feedback loop, you know, that increases the likelihood that public officials will basically make bad decisions come up with bad policy.

So transparency seems to be a remedy for all of that.

Mm hmm.

Last piece of discussion here, Jerry Poulet, who's a well-known advocate for open, open government in the state of Washington, talks about the normalization of secrecy, that that's what this is ultimately really about, is, yes, there is a legislative privilege against these record.

We do.

Does it matter who's in who's in control or who's in power?

This privilege exists because we want to normalize it.

Is there some truth to is that overthinking it, Mike, or do you think.

No, that's.

Oh, I think Jerry's absolutely right, as was Danny West.

He would point out that Jerry is a member of our board and a great contributor.

But I do think that there is this it's why in the legislative session every year, there are more and more bills close off, more and more access.

It just becomes the way of doing business.

And this year, a couple did not make it past cut off.

That would really change access to litigation.

Joan, does that where you are push not only for secrecy but also to reduce the past ways to hold elected officials accountable.

Absolutely.

And this idea that we're going to judge, requesters and try to make their request frivolous, how can you do that?

How can you judge what's meaningful to someone with the information they are requesting?

And because of the inconvenience you are because it's burdensome in terms of taking your time to make those records available.

That's on you.

It's easy to make records available.

It's it's it's your reluctance to make them available that makes it hard for you.

And that shouldn't be my problem as a requester.

But I know that my experience being in court and having to justify why I think an agency public records officer should actually go ask Bob for his communication with X, Y, and Z rather than do a keyword search from their desk in a data system with documents that haven't been archived and be done with.

It is a standard that's not frivolous and annoying.

And I'm not getting a lot of warmth and love and affection from the court when I'm up there.

Part of Title 42 of the revised Code of Washington says this The people of this state do not yield their sovereignty to the agencies that serve them.

The people in delegating authority do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.

The people insist on remaining informed so they may maintain control over the instruments that they have created.

The bottom line does that read like a legislative exemption?

Do you?

I hope this program got you thinking and talking to watch this program again or to share it with others.

Northwest now can be found on the Web at kbtc.org And be sure to follow us on Facebook and Twitter at Northwest.

Now, a Streamable podcast of this program is available under the Northwest now tab at kbtc dot org and on Apple podcasts by searching Northwest.

Now that's going to do it for this edition of Northwest Now and till next time I'm Tom Layson, thanks for watching.