Is public business really any of yours? Exceptions to public's right to know about government actions is growing

SEAN COCKERHAM; The News Tribune
Published: March 5th, 2007 01:00 AM

Washington voters approved a strong disclosure law in 1972 with just 10 narrow exceptions to the rule that public records are available to the public.

Since then, the list of exceptions to the public’s right to know has ballooned to more than 300. There are exemptions for records maintained by government that relate to ginseng, old railroad contracts, fireworks sales and membership lists of timeshare condominiums.

The state Legislature this year is moving to add more. Each exemption has a constituency with arguments for why the public has no business knowing about its business.

But Attorney General Rob McKenna is questioning the need to have so many exceptions.

“The whole purpose of open government is defeated if there are too many exemptions to the public records act,” the attorney general says.

McKenna is pushing a bill to address the exemptions. It wouldn’t get rid of any. But it would create a “Sunshine Committee” to review the exceptions over the next four years and recommend to the Legislature if they are all needed.

The state Senate passed the bill unanimously, and it’s considered to have a good chance in the House.

At the same time, other bills in the Legislature would create more exemptions to the public records law. They include exceptions for labor negotiations, detailed pipeline information, tribal fuel tax revenues, financial records of minicasinos, completed criminal investigations and dates of birth of public employees.

Some measures died last week in committee. But others, like the particularly controversial exemption for labor negotiations, could become law.

House Bill 2326, sponsored by Democratic Rep. Brendan Williams of Olympia, would exempt records from public employee labor negotiations that “would reveal strategies or positions taken” during the talks. It would apply to the state and local governments, including school district bargaining.

The bill follows an effort by the Evergreen Freedom Foundation, a conservative think tank, to obtain copies of notes from Gov. Chris Gregoire’s staff negotiations with public employee unions last year. Unions are trying to stop the release in court.

State employees who oppose mandatory union dues argue the information needs to be public.

Michael Farley, a state employee who is also a leader in the Fair Washington Labor Association, told a House committee last week that the bill goes against the state’s rhetoric of valuing transparent government.

“My organization maintains that HB 2326 attempts to reverse that and revert to the archaic practice of conducting government business in the secrecy of back rooms,” he said.

Farley told the House labor committee he believes the bill is an attempt to counter his group’s recent interest in union contract negotiations.

Rowland Thompson, executive director of Allied Daily Newspapers of Washington, testified that the trade group understands keeping the records private while the negotiations are ongoing. He also said it might not be necessary to see records of the union. But the offers and counter offers from a public employer need to be open following the talks, Thompson said.

Salaries are the largest single expense in any operating budget, he said, and the public has a right to know if the negotiations were in good faith.

“Certainly the notes and proposals that come out of the public employer are the sorts of things that the public is going to base their decisions on come election time,” Thompson said. “This is a huge, huge change in the law.”

Kent Stanford, a union leader with the state Department of Natural Resources, told legislators that Thompson represents the kind of people the union members fear. Public employees are everyday citizens, he said.

“They fear having the statements that we bring to support our bargaining efforts put out over the local media,” Stanford said. Public employees want the freedom to bring their opinions and not have the information turned over for anyone to use in any way they want, he said.

Rep. Williams said the measure is needed to promote candid and constructive dialogue during the bargaining.

“I’ve seen (the bill) characterized as creating a broad new exemption to public disclosure. I don’t think it’s either broad, or arguably, even new,” Williams told the House committee.

Williams said it mirrors existing exemptions for “preliminary drafts, notes, recommendations and intra-agency memorandums in which opinions are expressed or policies formulated or recommended.” He said it’s also similar to the “work product” exemption that exists for attorneys.

But Williams said later that he would attempt to fashion some kind of compromise.

There are similar arguments over a bill sponsored by Democratic Rep. Mike Sells of Everett that would exempt from disclosure communications arising during mediation over public employee labor disputes. That’s House Bill 2348.

Both labor-related exemption bills passed the Labor and Commerce Committee and could soon be on the floor of the state House for a vote.

Public’s right to know is all wrong, bills say

Here’s a look at other legislation in Olympia affecting public disclosure:

Pipeline locations: Under House Bill 1478, the public could have maps no better than a scale of 1 to 24,000 showing pipeline locations. It limits the release of specific information such as the locations of pumps and taps. Utility companies argue it’s needed because of potential threats from terrorists or others to pipelines.

Opponents say people have the right to know the details of pipelines in their neighborhoods.

The bill passed the House energy committee and could go for a vote of the full House soon. The sponsor is Rep. Jeff Morris, D-Mount Vernon.

Minicasinos: HB 1449 would exempt from public disclosure independent auditor’s reports and financial statements of minicasinos. Businesses with gambling licenses are required to file such information with the state Gambling Commission. Supporters say those financial statements shouldn’t be available to all.

Republican Rep. Cary Condotta of Wenatchee sponsored the bill. It passed the House state government committee and could be on the House floor soon for a vote.

Tribal fuel tax: Senate Bill 5272 authorizes the governor to enter formal compacts with tribes over the state fuel tax from gas stations on tribal lands. The tribe would have to spend the tax money on transportation projects. But the information tribes give the state as part of the agreement would be exempt from public inspection.

Sen. Mary Margaret Haugen, D-Camano Island, sponsored the bill at the request of the Department of Licensing. The measure passed Haugen’s Transportation Committee and could soon be on the Senate floor for a vote.

Public employees: HB 1942 would exempt public employee dates of birth from disclosure. Seattle Mayor Greg Nickels suggested the change, citing a fear of identity theft.

Opponents said there’s no evidence that public records requests for birth dates are a contributor to identity theft. Some newspaper editorial boards said such information can be necessary to verify people’s real identity and hold governments and their employees accountable for their actions.

The bill, filed by Democratic Rep. Sherry Appleton of Poulsbo, did not receive a hearing and is considered dead.

Police records: SB 6076 would exempt from disclosure police investigative records more than a year old relating to incidents where there was no arrest and no active proceedings. Sen. Bob McCaslin, R-Spokane Valley, sponsored the bill, which did not receive a hearing and is considered dead.

Attorney invoices: HB 1897 would actually help open some records to disclosure. It seeks to clarify the Legislature’s intent that invoices of work that private attorneys do for government agencies are not exempt from disclosure. The bill, sponsored by Democratic Rep. Brendan Williams of Olympia, passed the state government committee in the House and could soon be on the House floor for a vote.

Sean Cockerham: 360-754-6093


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