Northwest now is supported in part by viewers like you.

Thank you.

I want you to get up right now and go to the window.

Open it and stick your head out and yell.

I was mad as hell.

And I'm not going to take this anymore.

Well, the media and open government advocates have been shouting about public records for years.

But as my little granddaughter would say, it's not working.

Washington State used to have one of the most robust public records act in the nation, but now, with a whopping list of 650 exemptions and a legislature bent on exercising itself granted right of privilege, the PRA is losing its teeth.

Tonight, our annual program on public records.

Your right to government transparency and the ongoing effort to severely limit that right.

The Washington coalition of Open Government is here discussing the latest legislation that threatens the Our Steve begins with the story of activists using public records to hold the powerful accountable.

And Seattle Times reporter Shawna Sours be talking about her years long effort to hold lawmakers accountable when it comes to public records.

Your right to government transparency and public records is the discussion.

Next on northwest?

Now?

You.

The nation is in a righteous tizzy about the lack of transparency in Washington, D.C. sadly, though, lawmakers and local governments in the Democratic stronghold that is Washington state are having a hold my beer moment when it comes to demonstrating the will to operate in secret.

Their claim of privilege against the Public Records Act is ongoing and being litigated in court, with another list of bills proposed in the legislature designed to further weaken the PRA.

One example was House Bill 1055 that had the potential to rewrite the PRA by reducing the requesters access to the courts.

Meanwhile, some local governments and taxing authorities continue to frustrate requests and just shrug their shoulders and pay fines with taxpayer money when they lose in court.

tonight, here on the eve of sunshine week when the obvious benefits of an open and transparent government are celebrated nationwide.

We're doing our 13th annual program on this topic.

Let's begin with Steve kick ins and the story of local activists trying to use public records to really understand what happened during the civic unrest in the summer of 2020.

The timely production of of public records is is essential for a functioning democracy.

Glen Stell marker isn't just an architect.

He's an eyewitness to historic protests in Seattle.

Back in 2020, the experience forged his focus into a new title Investigative Journalist.

Some of these stories have never been disclosed before.

Today, his work is published on his website, Hard Pressed.

He's got bylines at online news outlet prism, and there's been locally published in Real Change.

It all began when he submitted a public records request to Seattle Police Department, seeking answers surrounding officer's use of force and chemical agents.

The questions just kept on coming.

And fast forward five years later, and now I'm a freelance.

Investigative reporter.

Public records played a large role in style markers reporting real change covering Speedy's use of aerial surveillance during 2020 protests.

A portion of the report describes when the King County Sheriff's Office Air Support Unit assisted Sfpd apprehending someone accused of assaulting officers making an arrest.

But still, marker questions the efficacy of speedy relying on aerial video in the case.

What is unclear is if this technology actually pinpointed the right individual.

What we found was that the individual who was arrested was later released and not charged with any crime or anyone.

But access to public records isn't always as easy as requesting them.

Someone who recently settled with the city of Seattle over access to text messages he says the department failed to disclose.

Related to 2020 protests.

The Seattle Times announced in January it's also suing SPD, alleging Public Records Act violations for steelmaker digging for the truth about how Seattle polices the public reestablish fines will be revealed, one public record at a time.

But he says the truth should come out a lot faster.

We should not have to be waiting this long for answers to critical questions.

In Seattle, Steve Higgins northwest now Last year, I promised that the candidates would have to go on the record about their commitments to open government and the and they did.

the legislature tried to hide behind a legislative privilege, I'm the attorney for the state.

Normally I have to represent the state no matter what they're going to do.

In that case, I did not.

The legislature hired their own counsel.

We actually filed briefs in opposition to the state legislature, saying they needed to disclose those records and prevailed in that litigation.

So I think there's real opportunity to be a larger resource for local agencies as well, to ensure the public has the records that they're entitled to, and also to make sure that the culture of practice at the edges office is one of transparency, where So during the campaign, both Bob Ferguson and Nate Brown made some strong statements about abiding by or even strengthening the PRA.

Will they vow?

Let's ask the Washington Coalition for Open Government.

First, though, in the interest of transparency, you should know that I am a member of the Washington Coalition for Open Government.

Joining us now are watchdog president Mike Fancher, board member and attorney John Mitchell, and Wash Cog Secretary George Erb.

Mike, in the interest of transparency, you and I had a little email exchange, prior to this program, and you mentioned that you're updating last year's PRA report that we did pretty extensive coverage of last year on this program and that you feel and I thought this was a really great word choice.

What you felt at the time was an erosion of people's right to know now feels like a full on assault.

Talk a little bit about that and what some of the updates to that report are going to be.

Okay, well, here's our report that we did a year ago, and it's available on our website at Wash Cock Dawg.

The update is basically asking ourselves, okay, what's changed since we wrote this report?

The first finding in this report was that the public's right to know was eroding in Washington state.

And what we will say in our update is that erosion is now feels more like an all on assault, that there are a couple things that have been happening, and we'll we'll be talking about those legislative privilege and auto deletion of records that feel more like an active attempt to keep the public from knowing, and the first conclusion in this report was that the legislature, hinders the public's right to, to records and access, and that hasn't changed.

If anything, it's gotten worse.

A little more aggressive.

And as always, we see bills emerge that we think are bad bills and we try to fight those off.

But but basically, things haven't gotten better and they are getting worse.

And that's not good.

Joan.

In 2018, the state legislature attempted to codify legislative privilege.

In 2019, the Supreme Court said no, you are subject to the PRA.

There is no such thing as legislative privilege.

So why are we back here again with two lawsuits, going one with Arthur West and Arthur.

If you ever watch this program, I'd love to have you on, but, with a with a, public records advocate, our Arthur West and wash cog, again with legislative privilege, talked a little bit about what leverage legislative privilege is, what the legislature is asserting, and why are we still litigating this?

So legislative privilege is, misapplied, in my opinion.

But the legislature is saying, or at least certain leaders in the legislature are saying that, by constitutional protection, they need to conduct their business in secret.

There is no, no public right to know how they formulate their policies that apparently they think that without secrecy, they can't come up with, policies that they can adopt or they can't even do their legislating, which is interesting.

I mean, there's other states that are far more transparent just in practice, even to include open caucuses, and they're passing bills all the time.

So, why are we back at it?

Because the people in power want to keep secrets from the public, and they don't want the public to actually know how they're making sausage.

But why did the Supreme Court's ruling stick that the legislature is subject to the PRA.

Well, because the Supreme or the Supreme Court, in reviewing that last case, was looking at the PRA.

And now they've said, oh, by the way, there's a Constitution.

And in the secret non verbal separation of power provisions of the Constitution.

Okay.

We have protections.

We are we are above the laws that we pass to apply to the agencies who we expect to be transparent.

So they took a very narrow view of what was litigated and say no, there's still some stuff over here that allows us to do it.

Well, the that they said, oh, by the way, we don't care about that.

We're bigger and better and more authority to to just do what we want in secret.

Okay.

Being probably the weirdo here in Western Washington when it comes to this issue and the elections in the last cycle, both Bob Ferguson and Nick Brown were questioned extensively on this program about their allegiance to pray and, and transparency.

Talk a little bit, George, about your impression of Nick Brown.

Do you do you feel like this guy is somebody who supports transparency?

You encouraged discouraged, what your gut say.

And I know it's very early on.

So you're I'm not writing this in stone.

My gut, I think our collective gut says, is that we're hopeful.

New attorney general Nick Brown, he was a member of the state Sunshine Committee for five years, left in 2017 when he left the governor's office.

He was at the governor's office in 2013 when then Governor Jay Inslee said that he wasn't going to, by or use executive privilege to withhold documents above and beyond what statute says he can do.

So we know that A.G. Brown is familiar with the public Records Act Plus, and this is probably the best signal we've had of all, is that he agreed to be the keynote speaker at, Watch Caucus annual Sunshine Breakfast on March 14th.

So that's a good sign that he's interested in in communication.

So we're sort of seeing this is turning the page.

So he's an opportunity to establish a new working relationship with, with a new public schedule.

Good.

Yeah.

And I talked to him about adding an ombudsman, for a little extra staff.

And, you know, he seemed he didn't want to commit to it, but he seemed open to the idea, which I thought was interesting to John, since we're talking about individuals.

Bob Ferguson, you have, not been shy in criticizing him in his approach to transparency and the public records in the past.

Although he recently did agree to stop using Microsoft team and destroying years of records that stopped.

So that must give you a little bit of a warm feeling in your heart now.

Does not give me any warm feeling in my heart, because I've been litigating the question of whether or not there should be automated destruction of chats, and I don't like to litigate those issues.

It seems like a no brainer to me.

So in advance of proceeding down the all out litigation mode, I spoke with his Fergusons, then AG Ferguson's, assigned attorneys, and they put a whole team of attorneys on that case.

And I said, look, it goes the first conversation we need to have is just make it stop.

What is the problem with just stopping?

And then we can go from there.

That's what this case is about.

I don't want my attorneys fees.

I don't want to litigate this forever.

Just stop the problem.

And they said, well, we will need to go have those conversations and they came back and they geared up and they ramped up and they started filing motions and motions and motions.

So we've been at this expending public resources and the hundreds of thousands of dollars to get to a place where, now Governor Ferguson realizes it's getting public attention and for his own, image, decides he's going to issue a proclamation that, they won't be automatically destroyed, but it hasn't solved the problem because they're gone.

What?

Well, no, it's better than that.

Will stop the technology from deleting it automatically.

But you please go ahead and make sure you're deleting individual users.

Your transitory communications.

And oh, by the way, now remember, you're only supposed to be doing transitory communications.

So that really the expectation is delete, delete delete delete delete.

I had not seen that.

So the system has been told to retain, but individuals have been told hey, get it out of there.

Get getting that.

No kidding.

No kidding.

Interesting.

Well, so so like, so you're saying I love and affection for the government there has not waned.

Okay, Mike, let's talk a little bit about some legislation.

And I want to, you know, state from the outset bills come and go.

Some make it through some committee, some don't.

We prerecord the show.

So who knows what's happening.

But I want to talk about some of the underlying principles, proposed in legislation this year.

One of them, House Bill 1056, looking at the Pennsylvania model, and impeding a requesters access to the courts, making Joan's job harder, to get access to the court.

If a requester is being denied, talk a little bit about what the threat is there.

Okay.

Before I do that, though, I will say that the coalition is independent and nonpartisan, and we fight with everybody who's doing anything to keep the public's access to government.

So just keep it close.

The access.

You're on the record there.

Yeah.

So I think it's important to know that and also in terms of Fergusons process, we would love to be involved in that.

We've said we'd love to be actively involved in that, because if they go off behind closed doors and take six months and come up with something new, then we'll have to sort it out all over again.

So yeah, we'd like to see it more open.

Why not be in a why not be in the room, right?

Yeah.

1055 is a bill that, purports to want to streamline the process of getting access to records.

We think it becomes another hindrance standing between the public and the documents that they're entitled to, to have.

It's just a study at this point.

Apparently a very costly study.

And with the government that's behind the eight ball on finances, that's a problem.

But, we looked at the Pennsylvania, process and talked to people there, journalists mostly there, and they looked at our process and said, well, what you have is actually better than what we have.

So they're not recommending it.

What what the state is trying to do is prohibit what they would call vexatious requesters, or people who ask for lots of records, to put a barrier up to that.

The problem is there aren't very many people that they're that they're targeting, but the effect would be very broad on the public's right to get the documents that are their documents.

And ultimately, the solution to that is very simple, right.

Fulfill the request.

Yes, exactly.

Maintain the records, organize the records, make the records available in a timely fashion.

That's what the law expects.

And actually, I literally like to say the coalition has been reaching out to local governments, especially smaller governments, who feel a real burden from this to try and understand the pain points that they feel and to try and come up with better solutions than closing off access.

And we've gotten a really good reception to that.

And so we're hoping that Nick Brown will help us in that process.

And we're doing we're planning on this year being a year of real good outreach.

While I've got you another one, I want to hit you on HB 1964.

If you have 15 seconds on this, having to declare the use of records under penalty of perjury.

In other words, I make a request and I got a promise I'm going to do something good with them because this is the problem, is that the spirit of the law is the documents are public.

And what you want to do with the documents is your business.

Now, there are some limitations in terms of specific commercial use or misuse of records, but for the most part, we just don't think that there's any upside to asking we now, who are you and why do you want these records, and what are you going to do with these records?

That's not the spirit of this law.

Yeah, interesting.

Another thing, and John, I'll let you talk about this.

This isn't directly related to the PR.

I tend to take this transparency program, this upper open government program, really dial in on the PR because it's an area that I care about very deeply.

But this is a tangential one, and that is an effort to change the initiative process in the state of Washington that I think, gets to transparency, gets to good governance.

Have you taken a look at that at all, and what are your thoughts about that?

And I notice I'm George nodding too.

So either one of you well, I mean, I guess I would step back and say the whole idea of open government and transparency is fundamental.

We have a constitutional right to know in Washington, and provide informed consent.

Article one of the Constitution said all political power rests with the people.

And part of, exercising your political powers, having informed consent.

I think that, the idea that you there's any kind of information that you should have to justify accessing is inconsistent with an answer to the question.

And I just want to educate myself.

I want I want to be able to exercise my informed consent.

So the initiative process, if they're they're winnowing away the initiative process because they don't want the people to have an effect on the laws that they're saying they have to do in secret or we're out of the game.

I mean, this has been predicted that you get you get one party control in all segments of government.

And then the idea is that you take away the last stand in authority of the people to speak.

That's dangerous.

George, last word to you.

Quick thought on the initiative process.

And how can people get involved if they want to?

Well, we don't we don't like to see, you know, more obstacles put in place of the public.

I mean, that's that's basically one of our, our core principles.

So the idea of like putting more boxes to check or anything like that on the initiative process, we're very much in favor of direct democracy and the whole principle that the political theory that we operate under is that the public, citizen driven government and the public oversees the government, but the public can't be effective overseers if they don't know what their government is up to.

Joining us now is Shawna Sauers.

Shawna has covered the Public Records Act and the Washington State Legislature for McClatchy Cascade Public Media, and now the Seattle Times.

Talk a little bit about why the interest in transparency in the PRA on your part.

You know, it's a good question.

It's kind of funny.

Whenever I graduated college, I didn't really have a firm grasp on, public records.

I wasn't really quite sure how to do it.

But I realized just kind of what you can find at a records, you know, it's kind of fun to discover little nuggets of information in there.

And, you know, that has just transpired into realizing why public records are so important.

I hear my own naivete come out in this question.

I'm going to ask you, are you surprised at all at how resistant lawmakers are to transparency, transparency in Washington?

And how do you explain that?

I keep coming up trying to come up with an explanation, and I really can't.

What's yours?

You know, I maybe can give them, you know, a little, room here.

You know, I certainly understand that nobody likes having, drafts of, you know, for, for example, they say that, you know, they need the legislative privilege for, so they can draft bills without anybody kind of overlooking it in to an extent.

I can certainly understand that.

I don't like people looking at my work before it's finished or edited either.

But yeah, they certainly have a track history of being resistant to the Public Records Act and, you know, they're just getting more clever in ways of hiding their, their records from, from people.

I always felt that if I were to be a lawmaker, radical transparency to me would be an out for that.

Though I could say I'm showing you my work.

Here's the process I went to.

Here's who I talked to.

I thought, yeah, maybe not.

Let's try this.

I feel that's very defensible.

Yeah, absolutely.

I agree.

Yeah.

The Department of Youth and Family Services, Washington State Patrol, so many agencies failing so badly, spending so much money in court and fines, what's your explanation?

How did the PRA get so badly broken?

The law has been there.

How is it?

How did it get so fractured?

I think a lot of it, I mean, personally, I just, since I've been looking into this team's issue for the last year and a half, I there's just so many avenues now that, agencies, lawmakers, people in power can take, to hide things.

Instant messages being, you know, the bane of my existence.

Now, you know, there's so many platforms that you can use and people don't even know that that these are being used by these individuals.

Talked a little bit about Microsoft Teams.

There's a lot of chatter, chatter going on between state government agencies, lobbyists who knows, who will never know because those records are gone.

You call them this out on this a couple of years ago, they called you a genius for for pointing it out.

Well, turns out guess what?

You were a genius.

What's what has been the result of that?

How do you see that going?

Are all the problems fixed?

Oh.

Absolutely not.

I think that we are just, you know, hitting the tip of the iceberg on this, you know, we now know that thousands of public records, probably hundreds of thousands of public records over the course of the last several years are gone forever.

They can never be found.

This is affecting real people.

Real cases.

In fact, I just got another email from another attorney in a doc.

Department of corrections.

Who said that they are having difficulty getting teams messages, which greatly affects their case.

You know, now the issue is, even though Ferguson has pulled back and said, we're not, going with an automatic retention or, automatic deletion policy, people still can delete those messages individually.

And that's what we're already hearing is happening.

You know, if you look at any Reddit, Washington State worker subreddit, it's mentioned in there, Facebook people have been mentioning that there is no clear directive on how they should be deleting things, and people are just deleting.

So we are still despite that proclamation, we are still creating records and deleting records, correct?

Yes.

What is the potential forward looking liability on this?

They just pay the fine a $225,000.

But I mean, we could be talking I mean for years of records and if if they can't prove, I guess, who does the burden of proof fall on ultimately, if they can't provide a statutorily required record, I guess it's the state and the taxpayers as usual, they continue to be on the hook.

Right?

Yeah, absolutely.

And I you know, I kind of alluded to this in the article I wrote, but I think that this is just going to set a precedent.

I think we're going to start seeing a lot more of this.

You know, this is this is really serious stuff, you know, DCF that affects children, Department of Corrections, that affects incarcerated individuals.

You know, it affects their civil rights.

I mean, this is this is a massive issue.

And if the records aren't there for plaintiffs and their representatives to determine what happened, you get into a he said, she said kind of thing.

But at the end of the day, those records were supposed to be retained, correct?

Yes.

Yeah.

So there's a lot of exposure there.

It sounds like.

Absolutely.

Yeah.

What are your thoughts generally?

Nick Brown and Bob Ferguson both talked about the PRA here in the run up to the election.

I talked to them both about that issue.

They both will tell you they support it all in favor of a transparent government.

By it.

You know, I think with Ferguson particularly, there is a history there.

You know, there have been a couple of different lawsuits for withholding information where the attorney general's office under his control was sued.

You know, one case was over $13 million that taxpayers had to pay out.

So, I don't know, I think that his step forward in, in, in ending this team's automatic deletion is a step.

But I don't know if I'm convinced yet.

And as far as Nick Brown goes, I, I can't say you know, he's he's kind of a newcomer for me.

And so I guess, you know, maybe I should start filing some records, requests of the attorney general's office and test drive that a little bit, see how much is, you know, tangential issue here.

And that has to do with press requests going through the governor's office before they're approved.

It's it's not necessarily a violation of the law, but it talks about the general mood of transparency.

I've always appreciate being able to go directly to subject matter experts.

I've done a lot of things on salmon recovery, and I love being able to go right to the subject matter experts and and and value that.

Yeah.

Not so under the Ferguson administration.

Talk a little bit about what the policy is and how you think that affects things like transparency and open government.

Yeah.

So basically, you know, the times, we got forwarded a directive, from Ferguson's communications office that says any press releases with state agencies have to go through the governor's office first.

I already experienced the downfall of that policy firsthand.

You know, I contacted DCF last week for comment on, or, I guess the week before last, on the settlement.

And by Monday, Ferguson's office had released, you know, this new directive.

And so it is frustrating.

I feel like it's taking a little bit longer to get responses from agencies especially, you know, I emailed a few agencies last week.

It took several days to get any kind of response out of them.

You know, that that hurts us when we're on deadlines and, you know, isn't isn't great for transparency.

If everything is, you know, it has to run through a certain network and, and is the person with the PhD who's the subject matter expert in that actually answering the question.

Right.

Exactly.

Shauna, thanks so much for coming to northwest now.

And, keep up the good work on the PRA and, transparent government in Washington state.

Thank you.

There are a lot of media outlets and individuals fighting for your right to know the bottom line until you, the public, get involved and really start putting pressure on your lawmakers of both parties to uphold and respect the provisions of the state Public Records Act.

Lawmakers and government officials will continue to take advantage of sunsetting media influence and fragmented public attention to erode your rights.

Google.

Sunshine week and the Washington Coalition for Open Government and get involved.

I hope this program got you thinking and talking.

You can find this program on the web @kbtc.org.

Stream it through the PBS app or listen on Spotify and Apple Podcasts.

That's going to do it for this edition of northwest.

Now, until next time, I'm Tom Layson.

Thanks for watching.

You.