Northwest now is supported in part by viewers like you.

Thank you.

Democracy only works in the context of the day in, day out exercise of good governance and transparency.

And that includes at the local level.

Tonight, our annual program on open government and the continued attacks on Washington.

Strong public records and open public meetings acts.

We sit down with the Washington Coalition for Open Government to discuss a major new report that illustrates just how bad things have gotten.

And our Steve Kiggins with the story of how an effort to save public records may preserve hard lessons from the past.

Your right to know is the discussion 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 for years now, local cities, counties and legislators have been using your money to fund a campaign to try to further limit the power of the Public Records Act, opting to invent exemptions, fund court battles and pay fines rather than provide requesters with the documents to which the law and the courts say they're entitled.

So here we are, like we are every year lamenting the slow erosion of governmental transparency as lawmakers continue to claim something called legislative privilege and lawmakers write bills designed to make holding government accountable more difficult.

But the importance of public records goes beyond the battles of the present as Northwest now, Steve Kitchens tells us.

Sometimes the quest for transparency is critical to our understanding of the past.

Lawmakers in Olympia approved a bill that preserves and catalogs thousands of hospital records found inside dilapidated buildings at the state's Lakeland village residential facility in Spokane County.

We're talking somewhere in the order of 3000 boxes filled with these documents that are decades old.

These documents tell the stories of Washington state citizens who were separated from their families and institutionalized.

Now, these records were slated to be destroyed, but that's until public record advocates sounded the alarm.

My great aunt is Grace Buchanan.

There's a picture of Grace.

Leslie Whiting is passionate about family history.

She testified during a January Senate hearing, sharing what she learned thanks to access to state records about a long lost relative she met only once.

Grace was sterilized.

Grace was committed to the state custodial school by her mother.

On June 25, 1929, she was 14 years old.

Grace's story is just one of an untold number of histories waiting to be revealed.

But only if Washington State protect and make publicly available patient records.

I cried.

You know, it just changed me that I wanted to make sure people knew who she who she was.

I think society was afraid of people with developmental disabilities.

Stacey did executive director of the Arc of Washington State, a nonprofit fighting for intellectual and developmental disabled communities.

Civil Liberties, says records discovered at Lakewood Village may date back more than a century.

And inside them, she says, likely describe a dark history of eugenics, mistreatment and possibly reveal branches to severed family trees.

I mean, I've met 70 year olds who didn't know they had a sibling until their parents passed away.

And then they discover that they have a sibling at a state institution they didn't know about.

Her efforts to save patient records from destruction awarded them.

And Lakeland Village Superintendent Tim Gurlitt's with a key award from the Washington Coalition for Open Government.

The bill, approved by lawmakers, instructs state agencies and the University of Washington to create a preservation plan and submit a budget in 2025 next year.

Advocates hope lawmakers approve funding to add identifying information.

A 900 Lakeland cemetery headstones that today display only a number stamped into concrete.

It wasn't just children who had, you know, what they considered feeble minded, but kids who were troublemakers.

Whiting's research moved beyond her Aunt Grace.

She's reaching out to strangers who may not even know about family members who became patients under the state's care.

What a tragedy.

If you wipe out someone's story, you know that their life had meaning, that they want people to know, Hey, I was here in Seattle.

Steve Keegan's northwest.

Now.

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 and George Herbert, coalition board member and longtime journalist and journalism instructor here in western Washington.

Welcome, both of you to Northwest now.

Great to having a discussion about government transparency, open records.

The open public meetings act like we do every year and every year.

I say to myself, Is this helping?

And I still think there are some questions about that.

And of course, all of us at that at this table hope that it does.

Hey, this report here, your right to know, produced and published by the Washington Coalition for Open Government is a comprehensive document, really lays out a great case for transparency for what's happening with transparency and maybe what needs to happen with transparency going forward.

We'll get into all of that.

I want to start out, Mike, first with the major findings, finding number one, the Washington state legislature is undermining the PR can't be said much playing with that.

How so?

Well, excuse me.

We we deliberately started with that because when we looked at what's causing the erosion in the public's right to know at the head of the list was the legislature.

And it's both indifference and it's if you want to call it this antagonism.

So for years they have passed additional exemptions to the Public Records Act.

They have tried repeatedly to exempt themselves from the Public Records Act.

And it's just has to be at the top of the list.

Nothing is is more antagonistic to the to the act than the state legislature.

They must see the polling that you do.

Why don't the politics of the situation auger in favor of transparency?

Well, it should.

I think the issue for the legislature is they get down there and they know that what they're doing is important.

And it's so important that they dare not let the public mess it up by looking over their shoulder.

And that's just that's just tragic because what happens then is the erosion of public trust in the process.

And that's what needs to be reversed.

And we're hoping the legislature will see the wisdom of that and change its ways.

And that's so crucial in this era when institutions are under attack, when public trust is under assault, when social media and and other forces are conspiring, in my humble opinion, to undermine democracy itself, That trust is so vital.

George Finding number two public officials obstruct requesters.

So not only are they is there are some policy pieces to this with the exemptions and 700 exemptions and whatnot, but there's also some active obstruction taking place at the local level.

How do they operate?

How do requesters get obstructed?

What what's their experience is as a I'm being obstructed in any number of ways.

And I co-edited the report and I was surprised by the number of ways that these obstructions take place.

I learned a lot by doing it as well.

It can be, you know, slow walking.

The response.

You could be saying you need to you need to pay us by check or in cash for the copy before we can send it to you.

It could be we're going to mail it to you rather than email you the records.

You know, it could be filing third party challenges.

That slows everything down and drags everything into the courts.

So there's any number of ways that it can be done.

And I was frankly surprised by how many different ways there are talk about this, too.

And I don't think one of the things that the average person understands, it's oftentimes the city or the county that they're living in that is actively pursuing this agenda against them, the constituents.

Yes.

Yes.

It it takes place across the board.

You know, Mike spoke to the state legislature, but but we see it, you know, across all state and local governments, cities, counties, but also the smaller ones, school districts, cemetery districts.

I mean, you know, it runs the gamut.

There's thousands of governments in Washington state.

Yeah.

So that's thousands of ways, you know, for the for the public records mechanism to get to get gummed up.

And if you're really a nerd and read some of the communication between the lobbying agencies and their constituencies in the form of city and county governments, they're very proud of the fact that they are on this issue, if you will, and lobbying, I guess they feel like in on behalf of their constituents, which are the governmental agencies, but of course, as we mentioned, doesn't necessarily augur well for requesters and the citizenry.

My finding number three agencies are failing to organize, maintain and disclose records.

Again, this seems like it should be a fundamental piece of governance.

It should be excuse me, it is in the law that they are to have rules and regulations that govern how they handle these documents.

We feel the biggest issue is around organization.

They aren't using technology effectively to help them organize.

And when the records aren't organized, what happens is they can't find them when they're trying to, which delays things and causes problems and it gets them into trouble in the taxpayers have to pay to get them out of that trouble.

So the organization is a significant part of it.

And also we feel that sometimes they get into kind of frivolous litigation instead of doing the right thing, providing the records to that.

Our public, they push back and push back and push back.

And then the next thing you know, they're in court.

They lose.

And as I say, taxpayers foot the bill.

And here's I think the thing that people really need to understand.

Not only are taxpayers, they're paying for the initial attempt to fulfill or deny records requests, they're paying for the litigation and the escalation that takes place by the governing agency to deny those requests.

Then they're paying for the fines and penalties that are found levied against that government entity.

And really, there's the government entities really have no skin in the game.

Is that is that a big problem with this?

The incentives are shaped incorrectly.

Yeah.

And what happens is when they settle, the first thing they say is they didn't do anything wrong.

Right.

So the best thing that comes out of that process is that sometimes they commit to changing their processes and procedures.

City of Seattle did that in a settlement with the Seattle Times, and that helps because then they go back and they deal with the training issues and they deal with the organization issues.

So that's the that's the positive side of that.

George, This gets into the weeds a little bit, too, but I'm assuming a certain number of open government nerds are watching this.

I was interested to read that some of the agencies now are actually facilitating leverage, legislative privilege on behalf of legislators, some of whom say, well, I don't necessarily claim privilege on this, but the agencies themselves are going through a process anticipating the needs and the wants of legislators who might want privilege.

I mean, this is that's a that's a multilayered attempt at obfuscation there, in my view.

How do you how do you view that?

How does wash Yeah, well, let me just say I'm a weed friendly guy.

So.

So so I'm with you on that.

Yes.

There was some very interesting reporting that came out about that several months ago about how a state agency, I can remember revenue was it was revenue.

Yes, that was it.

Yes.

Was was claiming legislative privilege is I recall I think that once it became public that they retreated.

sure.

But but that's that's that's always the fear.

And that's and that's why Congress greatest fear is that if legislative privilege ends up sticking, if the courts allow it to stand and the state legislature adopts it, that we expect that it would spread to other smaller legislative bodies.

Think city councils, county council, school boards.

And we could see that spreading.

And if it does, I mean, the Public Records Act would be so hollowed out as to be almost meaningless.

And we'll talk about putting some teeth into the PRA here in a little bit.

Mike, though, prior to that question, at a more fundamental level, does Watchdog or somebody need to develop a pledge, you know, for for a while one of the major national anti-tax organizations in the country was was very successful in getting lawmakers to sign a pledge does which called me to do something like that.

Here's a pledge that you were committed to the right to open government.

How does that stand?

Funny.

Funny you should ask, because we actually excuse me, we actually do have a pledge.

And so far, about six, I think it is legislators have agreed to sign the pledge saying I will not I will not exercise.

I will not claim a legislative privilege.

For the most part, they're kind of hunkered down.

They're going to wait and see how the court rules on this.

But also the first thing they say is, well, I've never exercised the privilege.

Well, that's because it didn't exist, that we still think it doesn't exist.

But until two or three years ago, there was nothing like that.

And suddenly it showed up in various state legislatures.

So they say, well, I've never exercised it and I have no intention to.

Well, that that's not very good for very much.

But until our lawsuit gets through the state Supreme Court and then it's settled one way or the other, legislators are just going to try and wait this thing out.

Talk a little bit briefly about what that lawsuit is.

Didn't we settle in another case?

No, This is this is a different than the redistricting.

And we've sued the state to say that they're asking the court to say that there is no constitutional legislative privilege that allows individual legislators to either not disclose or redact records.

So far, at the at the first court level, we lost we still think we will prevail up the ladder to the state Supreme Court.

But if we do lose and if there is a legislative privilege, then the pledge becomes much more important.

And and also, we may need a constitutional amendment to guarantee the public's right to know and would speak to that issue.

Perfect segway about a constitutional amendment in the Washington state constitution.

You know, section was section 4256.

Seems pretty clear to me, George.

It doesn't seem to leave a lot of wiggle room for what the intent of the of the body politic in this in the state is.

But how would a constitutional amendment work?

It seems like the public support would be there just to sign an initiative, but an initiative and then an amendment to the Con Give me some of the preliminary thinking on that.

It's a really, really heavy lift in this state.

And I don't know off the top of my heads, the the hurdle percentage is, is it like two thirds?

Some both chambers, something onerous.

Yeah.

And then it's in there.

It's a majority of the voters.

I think that's it.

Heavy, heavy, heavy lift.

But, you know, it's not unusual for states to have have some sort of of a transparency provision in their state constitutions.

There are six or seven states that have that Montana has that famously.

We've looked at that quite a bit.

That was when when Montana rewrote its constitution, I think it was in the seventies, they put that they put that in there.

So it's not unheard of to have a constitutional provision basically spelling out protecting access to public records.

Also in this report that I want to direct people to to and we'll do that at the end is a long list of recommendations.

You know, there's been a lot of complaints about vexatious requesters, for profit requesters.

There was a House Bill 2307 that died.

But the idea persists that the PRA requesters are a side job and a pain in the neck, which can be true.

But one of your top recommendations, Mike, is this request to change the whole mindset to view the PRA and the OPM as as essential?

How do we change the basic culture though, of an entire government to accept this as an essential duty and something that is not negotiable?

Well, sadly, Washington State was once recognized as just about the best state in the country for this, because back in 1972, the citizens passed an initiative that called for open government.

It was saluted by people in government.

And so we've got a good track record to build on.

And we also have a track record that says that when the public speaks, the politicians listen.

So when the state legislature, legislature a few years ago tried to exempt itself from the PRA on a given Monday, 13 newspapers in the state had front page editorials opposing that.

Some 20,000 Washington residents contacted the governor's office, asking for a veto, and the legislature backed down very quickly.

So that's the other thing that we say to the people.

It's your right to know that we're trying to protect and it's your time to speak up right now and let your legislators know.

We don't tend to think of open government in our elections as an important ballot measure in terms of who your candidate is.

We need to build that into the public's thinking about who they're electing.

And that circles back to that idea maybe of a pledge or or elevating its its its relevance to some degree.

Another recommendation is to legislate new a new requirement to operate transparently and facilitate easy and low cost access, something to preempt administrative delays and foot dragging.

Doesn't that already exist, though, George?

And does 40 to 56 needs subside teeth built into it like maybe personal liability for requesters who are dragging their feet.

If you lose in court, you just don't get to pay with the taxpayers dime.

You're personally liable.

What kind of things can help with this requirement to to operate transparently?

The burden on the government or the burden on the requester government and government?

We think that the government makes the job much harder for itself than it needs to be.

Honestly, you know, a lot of a lot of the litigation in the conflict could be avoided completely if a requester came back and said, Hey, you didn't give me all the all the records that I asked for or you missed this one.

If government just simply said, sorry, here it is.

The dispute basically goes away.

And if it does end up in court and judges sit there and see that the government is trying to fulfill the records request, you know, in good faith.

Right.

In good faith, then then that's going to basically diminish the likelihood that there's going to be any substantial penalties.

So I think the too many times government just simply picks the hard road instead of the easy road.

And if they pick the easy road, I think their lives would be a lot easier.

And if they were to lose in court than be personally liable somehow, that could change their outlook too, if they could be personally liable right now.

Right now, that that's that's that's not an option.

It's basically the government that's this libel.

And that means that the taxpayer.

So when they pay the bill.

Yeah.

Mike, you mentioned transparency.

You talk a little bit about the role technology in this whole thing.

It's another one of your recommendations to enhance it, not to evade it, to use technology to to help open government, to help transparency, not to not to make things more opaque.

It seems to me that with technology, this should be getting easier every year.

It should be.

And that's something where we think we can help.

And we're often seen just as a scold, which we can be.

But we also want to help governments figure out how to use this technology.

What are the model rules?

How can the training be improved?

This is all stuff that we want to work on, and we're reaching out to people like the Association of Washington Cities and seeing if we can't work together to try and make it easier for especially the smaller governments to serve this.

We'd love to see a statewide portal that would be easier for local governments to plug in to, you know, and use that that everybody puts a little skin in the game, contributes to it's very simple.

One stop shopping.

Wouldn't that be wonderful?

But do we need a little bit of a second look at the Sunshine Committee?

I'd like to mention that Toby Nixon, longtime president of the Washington Coalition for Open Government, was recently appointed by the governor to head that committee.

But the committee's arc has been definitely on a on a downward trend because a lot of committee members felt like nothing was happening.

They were just going to Olympia to say, let's not allow these exemption exemptions.

The legislature comes in, steamrolls them.

I think we're up to 700 now and in the Public Record Act two that are exempt records.

Does the Sunshine Committee have a future?

Can Toby save it?

What are your thoughts about this?

George?

I hope it has a future, but with the state legislatures in a phenomenal job in recent years of basically sidelining it by by making it irrelevant, by ignoring it.

So, you know, the committee, the committee's got a lot of work ahead of it.

I mean, there are things they can do.

And I and I'm confident that Toby can come up with ways to do that.

But but they might be able to do things like go after exemptions that state agencies wanted to get rid of anyway.

And so, you know, they would be able to go to the legislature and say it's not just us who want to get rid of this.

This particular exception to the Public Records Act, but it's Agency X or agency Y, You may be able to do things like that.

There's going to be some turnover, it looks like in the committee membership because of retirements that that might be reason for hope.

But but, you know, there's going to be a tall order to try and get the committee relevant again, especially with the state legislature.

Mike, I always go back to this kind of as home base, too.

There's a lot of complaints about vexatious requesters and all the problems that it creates and the the the need for all these exemptions and the horrible litigation and the fines that cities and counties have to have to pay.

There's always one simple solution, though, isn't there?

If you don't like somebody who is for instance, a gadfly or maybe you think is in this thing for the profit of all, there's always an easy answer, which is to fulfill the request.

How how do we I guess, how do we persuade lawmakers and administrators that they don't have to they don't have to be the subject of this report.

This can be made very simple.

It is a paradigm shift that needs needs to take place, because when local governments say it's too expensive or it's too burdensome, it gets in the way of our doing, our job.

That's what we need to say.

No, this is your job.

This is a basic function of government.

It's what the public expects from government.

The records, public records don't belong to the government.

They belong to the people.

Now, once we've established that, how do we make this system work more effectively?

That's what that's what we're trying to shift gears and start to focus on.

That last 30 seconds here.

If people want to get their hands on this report, which I which I certainly suggest they do, it really provides a compelling case for what the problem is, how it might be resolved, what the future might hold.

I really think anybody who votes or is a citizen of the state really should take a look at this.

How can they get a hold of it?

How can they engage with this watchdog?

What are some of the steps?

George, I'll give you a crack at it.

Thank you so much.

Go to our web site, watch cog dot org.

That's w AOC, COAG, dot org.

That's our web site.

If you open it up, the report is the banner at the top.

I'm going to say right now, you can't miss it.

It's right there and there's a button that says for more information or download and you hit that and you'll get the PDF of the report.

So folks can download this, they can share it with their friends, they can email it, they can download it, they can print it out, they can read it online, they can talk to their lawmaker about it.

We would love for them to talk to their lawmaker about it.

All right.

Great conversation, as always, guys.

I really appreciate you coming on Northwest now.

Thanks so much.

Thanks for having us here.

You know something?

I did this last year, but I'm now thinking I need to do it every year to read part of Title 42 of the revised Code of Washington, which says this The people of the 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 that they may maintain control over the instruments that they have created.

The bottom line transparency is the law of the land here in Washington, and it's up to all of us to know it.

I hope this program got you thinking and talking.

You can find this program on the web at kbtc dot org.

Stream it through the PBS app or listen on Spotify and Apple Podcasts.

That's going to do it for this edition of Northwest Now Until Next Time.

I'm Tom Layson Thanks for watching.