On public’s right to know, first do no harm

It may be veto season, but one of the most controversial bills in Olympia this year didn’t make it that far. SSHB 2576, an update to the state’s public records law, is in the House “x-file,” meaning it’s dead for this year. That’s a good thing.

The bill no doubt started from good intentions but its proposed changes went too far. Some form of the bill will likely return next year, however, because local governments do need a way to deal with unreasonable requests. Those include requests for every record a government has ever created and automated “bot” requests.

As 2576 advanced this year before its timely demise, it was slowly stripped of its more controversial provisions. One of the most problematic was a provision that would have allowed agencies to rank records requests based on perceived urgency.

Letting agencies prioritize requests of an imminent nature sounds like a good idea. In reality, this gives them far too much latitude to decide which requests get worked on and which do not. That would give governments a power that is practically guaranteed to be abused.

If, as it has been said, 90% of virtue is lack of opportunity, then agencies shouldn’t be given the opportunity to play political games by ranking the requests based on their own internal criteria. With that provision and one that would have allowed agencies to limit the time spent complying with records requests to as little as 10 hours a week, you can see why many newspapers opposed 2576.

The question now is what form of this legislation will reappear next year. One provision that was stripped out of this year’s bill deserves further consideration. A public records commission to help resolve disputes and make rulings is an intriguing idea. Filers who feel brushed aside by government could turn to the commission rather than the more expensive option of the courts. Governments that feel a request is unreasonable could ask a neutral body to examine the question and perhaps relieve the government of a time-wasting request.

As they did this year, legislators next year should take a Hippocratic, first-do-no-harm approach to a law that is vital to transparency and openness, then search for smart updates that don’t roll back the public’s right to know.
-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.