Access to government records: How, and how much?

By Tim Gruver
WNPA Olympia Bureau
Public records are one of the most important tools citizens use to keep tabs on government, but emerging technologies have made maintaining their accessibility in the digital age for government agencies a challenge.
On March 3, the state House of Representatives passed two measures that affect the cost of providing digitized public records to requesters, and managing access to records via a statewide Internet portal.
House Bill 1594 passed 79-18, while HB 1595 earned a 75-22 approval. Both measures now head to the Senate for consideration starting March 15 with public hearings before the State Government Committee.
HB 1595 would allow agencies to charge up to 10 cents per page for electronic records and 10 cents per minute of an audio or video recording based on Seattle’s cost model for electronic records. Agencies may charge up to 40 cents for every 25 electronic attachments and 10 cents per gigabyte for digital downloads under the proposal.
HB 1594, would provide $25,000 for a study conducted by a consultant handpicked by the state archivist to evaluate creation of a web portal placing public records into a single website inspired by the one used by the state of Utah. The portal would also track requests and notify requesters on estimated time of availability.
Currently, there is no default charge for electronic records such as email. Agencies may only charge the actual cost of providing the records through the expensive process of hiring a consultant to evaluate the price of file transfers and server maintenance.
The Public Records Act, enacted by Washington voters in 1972, allows agencies to charge a default rate of 10 cents per page if a copy’s actual costs are indeterminate. The agency may also require a deposit up to 10 percent of a request’s actual copy costs, which can include labor and shipping costs.
The act requires state and local agencies to make their records available to public inspection and copying upon request, unless exempted under law.
After receiving a public records request, an agency must respond within five business days. It must provide the record, give an estimated time for fulfilling the request, or deny the request with a written explanation.
HB 1595's sponsor, Rep. Terry Nealey, a Republican from Dayton, believes it strikes a balance of providing more resources for agencies to manage costs and record retention, while maintaining transparency and public access to public records.
“We need to update and align the public records requests law with current technology and in the end it’s going to improve transparency,” Nealy said. “When you have a whole long line of requesters in the queue, and especially a vexatious requester or a burdensome request, it’s going to slow down the ability of that agency to get those records out on legitimate requests.”
Requesting public records is not an act limited to journalists. Studies show that requests are made by citizens from all walks of life.
According to a report by the state auditor’s office, the news media made up a small percentage of people who filed public-records requests last year. Private citizens made 26 percent of all requests and law firms made 12 percent. Comparably, the media made 3 percent of total public records requests.
Another 27 percent of people who requested public records did not identify themselves. and 3 percent listed themselves as “anonymous.”
Toby Nixon, president of the Washington Coalition for Open Government and a Kirkland City Council member, shared the concern of many citizens that HB 1595 may create a new barrier for every-day requesters.
“The thing that caused the most concern were default charges for people of limited means who might have grown accustomed to getting electronic records at no charge,” Nixon said.
Many public records requests are made by automated computer programs, or “web bots,” created by data-mining firms and other commercial entities that can deliver hundreds of requests in a single hour.
HB 1595 prioritizes individual public-records requests over bot requests by allowing agencies to deny automatically generated requests made within a 24-hour period by a single source if they interfere with the agency’s other duties.
“You can receive a bot request every few minutes for hours and hours,” said  Nancy Krier, an assistant state attorney general. “Once you receive a public records request, a proper one, you have to respond to it. When an agency is responding to public records requests every few minutes, it can disrupt the agency’s other obligations.”
Huge public records requests can be taxing on small cities that lack the resources to fulfill, let alone estimate the cost of such tasks.
In 2016, Lynnwood resident Theodore Roosevelt Hikel Jr. requested thousands of e-mails from the Lynnwood City Council covering an 18-month period. The city didn't provide an estimated amount of time for fulfilling the request and instead asked Hikel to clarify his request due to the large volume of records needed to fulfill it.
Hikel filed and won a lawsuit against the city. The court ruled that the city’s request for clarification couldn't extend the time allowed to provide the records. Lynnwood must now pay the legal fees Hikel accrued pursuing the case, which have yet to be determined.
Currently, agencies maintain their own public records databases, often leaving smaller agencies too understaffed to rapidly respond to requests for large volumes of records.
HB 1594 – amended prior to passage to include an expiration date of June 30, 2020 for the bill’s $1 surcharge on documents recorded by county auditors, which funds state archive services for local governments – would require the state attorney general to assist local governments with managing records requests, and the state archivist would offer consultation and training services on improving record retention practices.
A seven-member workgroup, composed of four legislators and three community representatives handpicked by the Legislature, would convene this September and report on its findings by September 2018.
Opponents of the bill at its public hearing last month were concerned the legislation may create barriers to records access such as allowing agencies to offer mediation with requesters to clarify requests or to resolve disagreement over disclosure.
The bills' supporters in the House included Reps. J.T. Wilcox and Andrew Barkis, Republicans from the Second Legislative District that includes Eatonville and some other parts of south  Pierce County.

This story is part of coverage of the Legislature provided through a reporting internship sponsored by the Washington Newspaper Publishers Association Foundation.


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