Leader Article on Public Records Forum

Forum answers questions on open government, public records

By Barney Burke of the Leader

Thursday, December 10, 2009


More than 100 people attended a forum on open government Wednesday night at Port Townsend High School, including many local elected officials.

Sponsored by the Washington Coalition for Open Government (WCOG), a panel comprised of Tim Ford, ombudsman for the Washington Attorney General's Office, State Archivist Jerry Handfield, Toby Nixon, WCOG president and former legislator, and Wayne King, Jefferson County PUD commissioner, gave an overview of Washington's laws on open meetings and public records.

In the Q&A session that followed, many of the attendees zeroed in on the recent debate about whether the Jefferson County Board of Commissioners goes to far in restricting public comment.

Responding to a question about time limits on speakers, Nixon explained that state law does not require government bodies to have public comment periods during regular business meetings. "If they provide one, it's been pretty well established that you can't control content." But, he said, boards can prohibit disruptive behavior and set reasonable time limits.

Ford said that time limits are constitutional because they are content-neutral. And, he added, there's an expectation that the board conducts the people's business expeditiously even though some people may want to comment at great length.

Larry Carter, a frequent speaker at Board of Commissioner meetings, asked the panel if about a recent decision by the risk pool that insures Jefferson County to no longer cover fines and court costs for public record violations; the pool recently paid $41,000 to settle such a claim with Joe D'Amico. "Is that a good thing?" Carter asked.

"To the extent that it causes agencies to pay closer attention to law and take less risk, it's a good thing," Nixon answered. However, he noted that about 90 percent of violations come from a lack of training.

Ford added that there have been some egregious violations, such as when an official at the tiny city of Mesa sent a letter encouraging someone to sue if they didn't like the city's response to a records request. That judgment against the city may bankrupt it, he said.

Another man asked about whether a willful violation of the public records law could lead to a recall of an elected official. "A willful violation probably would be grounds for recall," said Nixon. Washington law requires a judge to certify misconduct by an official before a recall petition goes to voters.

Ford explained that even in his job at the Attorney General's Office, he has no enforcement power, so people have to go to court if they feel that a government agency has not complied with the Public Records Act.

Ford and Nixon said that WCOG is proposing a new agency, similar to what exists in Pennsylvania, where people can take public records complaints. As proposed by WCOG, the new agency would enable ordinary citizens to bring complaints, and the agency could force violators to comply. It would be quicker, less costly, and not require attorneys, they said. And it would still allow people to go to court if they were not satisfied with the agency's decision.

Nixon also suggested that, in addition to reviewing hundreds of exemptions in the Public Records Act, the law ought to be revised so that willful violators could be subject to criminal penalties. However, it's not clear whether a county prosecutor would file charges in such cases, he said.

"It was a great forum," said David Sullivan afterwards. The chair of the Board of Commissioners, he's the target of a lawsuit filed last week by Mike Belenski. Belenski and some of the other regular speakers at county commissioner meetings feel that Sullivan goes too far in trying to ensure decorum at the expense of free speech.

Sullivan said he had a "good conversation" with Ford prior to the forum. "You can intervene on behavior that leads to disruptive behavior," said Sullivan, paraphrasing Ford. However, he said that it's hard to give explicit examples of a behavior that would clearly lead to disruptive behavior.

"I don't limit content," Sullivan continued. "I remind people of expectations and let them speak."

"All three commissioners were here," Carter said of the forum. "I'm glad to see that."