It’s no secret government records in Washington state have been harder to get, but finding the right solution to the problem might be trickier than expected.
On Thursday, state Attorney General Nick Brown's office held a meeting to receive public feedback on its proposed solutions, released in early October.
The proposed changes are in response to a petition submitted by The Seattle Times and other news outlets in 2024 to revise the guidelines for Public Records Act requests. The outlets filed the petition after encountering long delays in receiving records about standard government actions.
Although the recommendations, known as “model rules” are nonbinding, they are intended to help state agencies navigate the complexities of responding to Public Records Act requests from the public including journalists, attorneys and other government watchdogs.
It was clear from testimony in the hearing, however, that not everyone agrees on how to make that happen.
Brown’s recommendations from October touched on three areas. The first two have to do with the speed of responding to requests. One proposal is to create a triage system in order for public records offices to be able to respond more quickly to simple ones. A second proposal is providing single, specific and identifiable records within the required five-day response time.
The AG's office also sought to address a practice where the government notifies any entity about a records request that may include records about them. The proposal would encourage agencies to have a reasonable belief” records are exempt from disclosure before issuing third-party notices.
Colette Weeks, executive director for the Washington Coalition for Open Government, said the government watchdog organization supported the model rules laid out by the AG, noting that when the Public Records Act was passed as an initiative by voters in 1972 they were clear that responses to records requests should be prompt.
Weeks added the organization would like to stop the auto-deletion of some records “and require that all deletion decisions are made only by records management staff.”
Previously, instant messages communicated through platforms such as Teams and Slack were auto-deleted after seven days without regard to content, potentially leading to the deletion of hundreds of thousands of public records over the last several years.
Gov. Bob Ferguson suspended the seven-day auto-deletion practice at state agencies in February after the Department of Children, Youth and Families was found to have destroyed public records through the auto-deletion process, resulting in a lawsuit that cost state taxpayers $225,000.
Weeks said the storage of public records on personal devices should be prohibited and “state issued communication devices should have their data stored and available for centralized search and disclosure.”
Michele Matassa Flores, executive editor of The Seattle Times, highlighted instances when reporters experienced long delays in accessing public records such as requests involving use of force by the Seattle Police Department against protesters in 2020, worker safety at Amazon, and the neglect and abuse of students in special education schools.
She noted The Times was either improperly denied records or sued by third parties who received advanced notice of requests, and while the outlet prevailed in court for those instances, they have spent thousands of dollars in lengthy court battles.
She added the news outlets have “worked to craft these proposed rules in a way that is realistic and will help agencies triage decisions while upholding the law.”
Most of the people who testified took issue with the proposed rules.
Justin Leighton, executive director for the Washington State Transit Association, said Thursday that the agency believed the proposed changes were a significant overreach of the rule-making process, and that the proposed policies would have operational and financial consequences.
“These kinds of decisions should be made through a legislative process, not through administrative rule making,” Leighton said. “The public and the Legislature deserve a voice in shaping such impactful changes.”
Leighton also argued the proposed rules include unclear terms that could open the door to disputes and more litigation, and the triage system, separating more simple requests from those that are complicated, creates new challenges as not all agencies in the state have the same staffing and resources.
Others who testified with concerns included city clerks, public records officers and attorneys.
The AG's office will now consider all of the public input before filing the final rule making order. The last time the model rules for public records were updated was in 2018.
The reworking of model rules comes at a time when transparency in Washington state government is declining, particularly in the statehouse.
State lawmakers have made multiple previous attempts to exempt themselves from the state’s Public Records Act. And they are currently waiting to see if the state’s highest court will grant their claims of “legislative privilege” to shield their communications and draft policies from the public. The privilege is a legal argument put forth by lawmakers that the state constitution gives them the authority to withhold records on internal deliberations.
Washington state was long considered one of the most transparent states in the country. But according to a report released in 2024 by the Washington Coalition for Open Government, public access to government information is eroding.
The report determined the state Legislature undermines the state’s records act, that public officials and agencies obstruct requesters, and that open government training is “inadequate and often wrong.”
In November, Brown also took the transparency issue one step further by creating the Public Records and Open Government Unit in order to “manage public records processes, records retention" and constituent correspondence.”
“At a time of widespread mistrust in government, public access is as crucial as ever to let the public see our work for themselves,” Brown said in a November statement.
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