Opinion editorial by Rep. Terry Nealey: Keeping government transparent while preventing public records request abuses

Mark Twain is often quoted: “Never pick a fight with people who buy ink by the barrel.” Perhaps that may be partially why, after years of trying, lawmakers have still not passed legislation that would prevent the expensive abuse of Washington’s Public Records Act (PRA).

Under the PRA, government agencies, including cities, counties, and even school districts, must make available all public records for public inspection and copying, unless a record falls within certain exemptions. A person denied that opportunity may sue in court. If the plaintiff prevails, he or she must be awarded all costs, including attorney fees, plus up to $100 for each day of denial to that record.

Unfortunately, some are gaming the system with so-called “fishing expeditions” or retaliation requests. Some have profited from the abuse while costing government agencies so much that they’ve been forced to reduce public services. In some cases, they are pushed to the edge of bankruptcy.

In 2007, the community of Mesa was forced to pay a $246,000 fine to an individual who issued 172 records requests. This crippled the town’s budget of $340,000.

Prosser settled a public records lawsuit with an individual for $175,000, who admitted his goal was to “bankrupt the city.” The city had to hire an additional staffer to handle his requests that have now cost Prosser a total of $325,000.

Public records requests have taken up 80 percent of the Port of Kingston’s tax revenue. In Yakima, requests skyrocketed from 321 in 2011 to 1,096 last year. In Palouse, population 998, an individual submitting excessive requests told a reporter, “I am doing this for pure pleasure.”

So why aren’t legislators addressing this costly abuse?

We’ve tried.

Before I took office in 2009 and every year since, there have been numerous legislative attempts to create a balance that would accommodate legitimate public records requests and preserve transparent government, but would make it harder to abuse the system.

However, every year, newspaper lobbyists in Olympia have fought vociferously against these measures and notified their newspaper editors back home. The result is usually an editorial in the newspaper that skewers the bill sponsors for attempting to limit the public’s access to public records. Predictably, the bill then dies. Who wants to pick a fight with people who buy ink by the barrel?

Meantime, the abuse continues. Local governments are forced to spend more of their limited resources to honor the requests. Requestors make thousands of dollars. And taxpayers are fleeced.

This year, I co-sponsored House Bill 2576. The measure would allow agencies to set policies of response prioritization, based upon such things as emergencies, complexity and size of the requests. Current law requires agencies to respond to the requestor within five days, setting forth a reasonable amount of time for the records to be made available. This does not change. My legislation also proposes that an agency may, under certain limited and strict conditions, deny a massive request for all or substantially all agency records, but would not be able to deny on the basis that a request is overly broad.

The bill doesn’t stop the public from accessing public records. Instead, it seeks a balance of accommodating legitimate requests while reducing frivolous ones. Our goal is to fine-tune the state’s Public Records Act, not overhaul it, to ensure this balance. To that end, House Bill 2576 would also create a legislative task force to recommend future options that provide for this balance.

Editorializing against these bills doesn’t solve the problem. We really must address this issue. If we don’t change the status quo, every legitimate requestor — even newspapers — may suffer lengthy delays to government records because of the growing backlog created by illegitimate requests.

I’m willing to work with all interests, our newspapers included, and join forces to find a solution — one that preserves open government as we all wish to do, but stops abusers of the system from profiting at the expense of our taxpayers.

Editor’s note: A lifelong resident of Eastern Washington, Rep. Terry Nealey serves the 16th Legislative District. He is a former prosecuting attorney and coroner from Columbia County. He is retired from his private legal practice and lives in Dayton with his wife, Jan.

State Representative Terry Nealey, 16th Legislative District
404 John L. O'Brien Building | P.O. Box 40600 | Olympia, WA 98504-0600
(360) 786-7828 | Toll-free: (800) 562-6000