Need for speed: Plan to unclog WA public records system gets mixed reviews

Washington’s attorney general is seeking to reduce public record backlogs as concerns grow over transparency and agencies strain from surging requests.

Attorney General Nick Brown has proposed new advice for locales on how to interpret state public records law, with a focus on providing records faster. The rules Brown is proposing don’t change the state’s Public Records Act. They only serve as a guide for state and local governments on how to comply.

Open government advocates support the changes. Government officials are skeptical.

One of Brown’s bigger recommendations is to triage public disclosure requests so simple asks for one document can be provided faster than complex requests seeking, for example, thousands of pages or hard-to-find records.

Under the current system, narrower requests can sit for months, even years, while records officers deal with difficult ones first-come-first-serve. The newly proposed rules push agencies to provide records within five business days if the request is for a “single, specific, identifiable record.”

Another notable revision would raise the bar for disclosing requests to third parties named in the records. Letting people know about the requests allows them to seek a court order to prevent the information’s release.

The current criteria for notification are “information that may affect rights of others and may be exempt from disclosure.”

The new rules would shift that to say that the trigger is disclosure of information that “may substantially and irreparably damage any person or vital governmental function.” They also add “an agency should have a reasonable belief that the records are arguably exempt from disclosure” before giving third-party notice. These notices can slow the fulfillment of requests.

“Third-party notification that a public records request has been made should be the exception of the rule,” Colette Weeks, executive director of the Washington Coalition for Open Government, said in a hearing last Thursday. “It needlessly delays the process.”

Other changes make clear agencies need to deliver records “promptly” and provide clearer guidelines for what is said in letters closing records requests, in line with a 2024 state Supreme Court decision.

Clerks who handle these requests expressed concerns, saying the rules would require more resources than agencies have. They worry the triage proposal, for example, “will create more problems than it will solve,” said Candice Bock, director of government relations at the Association of Washington Cities.

“These provisions rely on subjective, ill-defined standards, but the main problem with them is that they contradict the spirit and letter of the law they are supposed to implement by requiring the government to discriminate between requesters in new ways,” said Paul White, deputy city clerk in Lacey.

Justin Leighton, executive director of the Washington State Transit Association, called the revisions an “overreach of the administrative rulemaking process.” He argued the changes proposed should be made through legislation.

The new rules come after The Seattle Times and other news outlets asked for them to be revised to address delays journalists faced when requesting public records. The media organizations argued the current rules were vague and allowed for logjams that slowed disclosure.

“We routinely request access to government records, and we don’t do it to pester or unduly burden civil servants, but to illuminate issues of great importance,” Seattle Times Executive Editor Michele Matassa Flores said.

“Washington state has long been cited for its high standard of government transparency, and for the most part, it lives up to that reputation,” she added. “Please help us avoid losing that distinction and approve these updated rules so our public agencies remain as transparent as the law and democracy dictate.”

Written comments will be accepted until Nov. 17, before the changes are finalized.

Rising demand

Most records held by public agencies are available via record requests. This can include not just documents but also video recordings and communications like text messages and emails.

The number of requests governments are dealing with are growing, according to a state report surveying 230 public agencies subject to the Public Records Act. The law covers at least 2,400 government entities.

The surveyed agencies received almost 438,000 requests for public records in 2023, up from 383,000 in 2019, according to the report from the Joint Legislative Audit and Review Committee. More and more are coming from individuals, insurers and law firms. Less than 2% come from self-identified members of the media.

Response times have been rising for years. In 2019, it took 15 days on average for agencies to provide records from the date of the request. In 2023, that was up to nearly 25 days, the audit found. Over half of the requests are closed within five days, the deadline for agencies to provide an initial response to requests.

Government agencies around the state are spending more money on public disclosure requests, with the sum rising from roughly $100 million in 2019 to nearly $137 million in 2023.

Voters approved Washington’s Public Records Act via ballot initiative in 1972. The Legislature has revised it numerous times since, adding many exemptions.

This revision process began under then-Attorney General Bob Ferguson, now the governor.

Brown is also creating a new unit within his office focused on public records and open government, set to be led by the agency’s first “chief transparency counsel.” At least 10 existing employees will staff the team.

The announcement of the new unit last week comes as records requests to the attorney general’s office spike, from 528 in 2014 to 1,032 last year.

“Transparency is a key part of the work we do every day to protect and support Washingtonians,” Brown said in a statement. “At a time of widespread mistrust in government, public access is as crucial as ever to let the public see our work for themselves.”

The Washington Coalition for Open Government applauded the move.

“We look forward to working with this new unit to ensure that the public’s right to know what government is doing is not only protected but advanced,” the organization said in a statement.

This story was originally published by the Washington State Standard.