COMMENTARY

February 1, 2005

EFF testimony regarding HB 1134: Creating a public records ombudsman

Audio Link: Windows Media | Real Audio
(EFF testimony runs from 23:46 to 29:33 using media player)

Jason Mercier | Evergreen Freedom Foundation
Chairwoman Haigh, committee members, good morning. My name is Jason Mercier and I am a budget analyst for the Evergreen Freedom Foundation. I'd like to thank Rep. Nixon for the invitation to testify today on HB 1134, creating a public records advocate and records clearinghouse.

My duties at EFF include requesting public records, and I am also frequently contacted by the public with questions on how to make public records requests. These experiences and the research I have conducted on public records laws from other states have led me to conclude that creating a public records advocate and public records clearinghouse would ease the frustration some governmental entities feel in responding to records requests. It would also ease the suspicion the public sometimes justifiably holds in how their records requests are being handled.

The people's ability to control their government is only as strong as their access to information about their government's activities. It is because of this premise Washington's public records law was enacted with the following intent section:

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 that they may maintain control over the instruments that they have created. The public records subdivision of this chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy - RCW 42.17.251

Despite this clear directive, many abuses to Washington's public records law have been well documented. When even the state auditor has been denied access by agencies to records as cited in last year's statewide accountability report, the obstacles facing the public are only multiplied.

Frustrated with similar public records abuses occurring in his home state, Texas' Attorney General recently hired a prosecutor whose "only job in the Office of the Attorney General will be to prosecute open government act violations." This new public records prosecutor complements Texas' other public records activities which include:

• an open records division to enforce records compliance;

• a committee that offers advisory opinions on public records related legal issues; and

• an open government clearinghouse that maintains a hotline to answer the public's questions about access to public records.

Texas' public records activities have been met with great support and serve as a model for HB 1134's provisions. Though Texas has placed these activities in the Attorney General's office, a similar undertaking in Washington may prove to create a conflict of interest. While Attorney General McKenna has made creating a culture of compliance in state agencies in regards to Washington's public records law a priority, because of the fact even the attorney general's office has faced public records violations in the past, HB 1134's proposed public records advocate seems better suited within the state auditor's office.

A public records advocate and clearinghouse within the state auditor's office coupled with General McKenna's efforts to ensure agencies comply with the state's records law could facilitate a new era of trust by the people in government's willingness to open itself to scrutiny.

HB 1134's public records clearinghouse provisions and assistance to government in meeting records requests requirements also provides the opportunity to help address any potential mis-communication that may occur between records requesters and government. By having access to an independent third party to obtain an opinion from concerning records requests, the lack of trust that sometimes leads to unnecessary records litigation could be mitigated.

For these reasons, the creation of a public records advocate and records clearinghouse housed within the state auditor's office are a logical extension of the state records law to help ensure its objective application and are worthy of consideration.

I'd be happy to answer any question you may have.

Jason Mercier is a budget research analyst for the Evergreen Freedom Foundation.

Contact: Jason Mercier | Budget Analyst | 360.956.3482

Evergreen Freedom Foundation P.O. Box 552, Olympia, WA 98507 Phone: (360) 956-3482, Fax: (360) 352-1874 Email: effwa@effwa.org