Spokane's "Spokesman-Review" guest column on PDA violations

Guest column

Kristopher R. Passey
Special to The Spokesman-Review
September 28, 2005

The Washington Supreme Court has decided not to reconsider a lower court ruling that the city of Wenatchee must pay $718,000 in penalties for violating the state's open records law. The city had withheld documents that might have changed the outcome of a trial regarding child sex rings and the investigation that wrongly sent some people to prison.

In a different public records case last year, courts ordered King County to pay Armen Yousoufian $380,000 for violating the same law. That case concerned the destruction of the Kingdome and subsequent construction of Qwest Field.

The city of Wenatchee and King County both flouted the law. Government actions in the Wenatchee case added to public confusion about the ability of justice to be served. King County's actions buttressed the cynicism of those who believe that the rich get special deals and politicians are more sympathetic to the interests of a powerful few than what's good for the masses.

The intent of the open records law is to provide an adequate window on the workings of government so that corruption and incompetence cannot flourish. It is the people, not their elected, appointed or hired representatives, or the rich and powerful, whose interests are to be advanced by government.

Paradoxically, the very people who were injured will end up paying the fines in both cases. And outrageously, invoking penalties will not achieve the intent of the law.

Yes, $718,000 is a lot of money for a city with a $47 million annual budget to pay. But none of the people who orchestrated withholding the documents will pay their fair share of the penalty. Nor are they subject to dismissal from their jobs. Since there is no process to determine who those people were, they probably won't even receive a formal reprimand for costing taxpayers 1.5 percent of their city's annual budget. This lack of personal accountability helps perpetuate secrecy in government.

A solution used in Texas would be a step in the right direction. There, public officials who intentionally mislead, delay or otherwise try to circumvent public disclosure laws are put in jail. They are subject to heavy personal fines. They can lose their jobs, pensions and ability to work for government.

This has reduced, if not eliminated, the lip service paid to open record compliance by governments skilled at getting around the law. Wenatchee city government's prowess in "getting around disclosure" will cost its citizens $718,000.

King County provides an example of another inequity. The $380,000 in total fines assessed in the Yousoufian case is also a lot of money. But compared with King County's operating and capital budgets it is minuscule. Compared with the stakes involved in building a new stadium, owning a profitable sports franchise and receiving a $300 million subsidy, it hardly merits a breakout from the miscellaneous line on any corporate ledger, let alone the city's.

In the Yousoufian case, the strictest interpretation could have assessed King County $100 a day, per record, as long as the records were withheld. In a horrible precedent, the court assessed a lower penalty using softer criteria. Under a strict interpretation, the penalty would have come much closer to the $30 million Yousoufian sought.

If one figures the value of the new stadium/NFL team ownership at $600 million, as some have suggested, a $30 million penalty represents 5 percent of the value. But over the long term the value of this deal is much larger. So even $30 million could represent an acceptable expenditure to ensure the deal got done. It could be reasonably expensed as a "cost of doing business."

The courts may be reluctant to assess strict fines partly because they understand the public will pay in the end. A strict interpretation adds to the cost of government, as critics of open government like to point out.

The outrageous part is that even these soft penalties add to the cost of government without fostering the climate of compliance necessary to protect citizens' right to see what their government is doing.

Three things must change.

•First, a process for determining who is responsible for circumventing open records requests must be set up. Those found guilty must be subject to appropriate actions ranging from criminal prosecution and removal from office or loss of job and benefits to formal reprimands.

•Second, monetary penalties must take into account the economic circumstances surrounding the violation. Violating the public's right to know cannot be seen as a reasonable cost of doing business.

•Third the mainstream media must take up their responsibility to investigate and publish important stories regarding information turned up in documents sought by non-media individuals. It is hypocritical for the press to shout for the rights of disclosure when they are the requesters but ignore important information turned up by the records requests of others. Until information contained in the records now disclosed in the Yousoufian v. Office of Ron Sims case receives wide coverage, the public will not have what they need to direct wise governance.

Let's stop letting the true perpetrators off the hook.