More devices, more chances to skirt public records disclosure

Washington’s public records act is one of the best tools citizens have to hold their government accountable and ensure that government actions are transparent. Our state’s disclosure law is one of the broadest in the country, and that’s no wonder; voters themselves approved the law, with fewer exemptions and loopholes than would have been likely if the Legislature had approved it.

We need vigilant defenders to keep our public disclosure laws strong. Groups like the Washington Coalition for Open Government, newspaper editorial boards, and citizen activists watch for and oppose unnecessary new exemptions and fight lawsuits that could narrow public access to records.

It’s not enough, though, to fight off changes that could weaken the public records act. State leaders need to put thought into whether or not our public disclosure law has kept pace with the times. With the explosion of new devices, social media outlets, and communications methods such as texting, public disclosure rules need an update to clarify what is and isn’t a public record.

Part of that discussion needs to involve what the consequences are of using a personal device for public business. The state Supreme Court ruled in a prominent public records case against the City of Shoreline that electronic metadata is a public record, it can be requested, and if a personal computer was used for public business, that computer’s metadata must be disclosed

It was a significant case that set an important precedent about electronic data, but it was far from a comprehensive answer to all the questions that surround electronic records and personal devices. For instance, because the councilmember in this case was willing to hand over her personal computer for its metadata to be scanned, the court had little to say about enforcing compliance. What would happen if a public official used their personal computer for public business but refused to disclose data from it? Until that’s addressed by the Legislature or the courts, it will remain a big question mark.

More broadly, public employees need guidance on when it is and is not appropriate to use their own devices for government business, and how they might be exposing those devices to disclosure by using them. We also know the temptation is there to simply shift public communications that should be disclosed to private devices, private e-mail accounts, and private servers. As long as some topics and decision-making rationales could be embarrassing, sensitive or controversial, some will try to keep a lid on those documents.

That’s why we need clearer rules and expectations for public employees, so they know how to avoid inappropriate communications. By addressing those grey areas, we’ll also be eliminating potential excuses from those who would intentionally skirt the rules and deceive the public.
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.