Shawn Vestal: A half-century after the people demanded transparency, ‘secrecy creep’ flourishes

In 1972, citizens mounted an initiative to crack open the secrecy surrounding the people’s business.

Initiative 276 was intended as a beam of comprehensive, thoroughgoing sunshine, opening the books of campaign finance as well as making virtually every government record open to the public.

During the campaign, people would sometimes be taken aback at how thoroughly the measure intended to open the government’s business – thinking surely the sponsors had plenty of exceptions in mind, said David Cuillier, a former Washington journalist who co-authored a short history of the initiative in 2004 while studying for his doctorate at Washington State University.

But they envisioned no such thing. The sponsors foresaw the measure applying to nearly every document produced by any government agency, at any level, in any branch.

“All of it,” Cuillier said.

Nearly two-thirds of Washington voters approved the initiative, and the state proceeded to create one of the most robust public-records laws in the nation. But “all of it” has gradually become “some of it,” and open-government advocates are calling for a renewed push in the spirit of ’72.

A new report from the independent nonprofit Washington Coalition for Open Government outlines many ways that access to public records has been eroded, one seemingly small step at a time. Legislative exemptions to the disclosure have piled up, and the Legislature has steadily undermined the Public Records Act, the report says. Agencies delay and obstruct. Officials hide their deliberations using personal cellphones.

Most prominently, lawmakers have engaged in a persistent campaign to skirt the law themselves, most recently going to court to argue – with some initial success – that they have a “legislative privilege” to withhold information.

Fifty-two years after the triumph of Initiative 276, WashCOG says, the public’s right to know is in trouble.

“We believe the situation for open government has become as bad as it was in 1972, when voters passed Initiative 276,” according to the report. “Clearly, Washington needs stronger protections – perhaps a constitutional amendment – to keep government open and accountable.”

Cuillier, a former president of the national Society of Professional Journalists who is now the director of the Freedom of Information Project at the University of Florida, helped produce the 74-page WashCOG report. He said Washington has spun through the same cycle that occurs across the country – and in other countries – after a successful push for government-sunshine laws.

“They get passed, everyone’s all ecstatic, and then they get whittled down year by year by year until they’re worthless,” he said. “Before you know it, these laws have become tools of secrecy, not transparency.”

‘Hunger for hiding’

It’s important to understand the context for these concerns: Washington’s open-government protections are some of the best in the country. Compared to other states, protections for public access to documents and meetings of decision-makers here remain strong, and the responsiveness of agencies to records requests is also better than most.

Melissa Luck, the executive news director for KXLY and a member of the state’s Sunshine Committee, said last week that she had just returned from a professional conference where she was reminded of our relatively strong public-records laws.

“When I hear them talk, I feel like we’re in pretty good shape,” she said.

But she’s also come to recognize how many exemptions have been added to the law, and how little attention the Legislature pays when the Sunshine Committee recommends changes. When she thinks of this chipping away at the records law, “I’m actually more concerned.”

The original law had 10 exemptions for public records, mostly related to individual privacy. We are now approaching 700. Since 2012, lawmakers have passed an average of 17 disclosure exemptions per year, the WashCOG report says.

The Public Records Act “is increasingly riddled with exemptions that withhold information from the public and make records laws harder for everyone to navigate,” the report says. “The beneficiaries are often interest groups and public officials who want secrecy provisions tailor-made for them. State legislators often oblige.”

Many public record exemptions focus on elements of personal privacy, particularly related to children and students. But there are scores of others without such obvious purpose – exemptions for crude oil transfers and cardiac stroke data; the lot numbers of hop growers and records relating to criminal terrorist acts; gang databases and databases of felony firearm offenders; “certain farm plans” developed by conservation districts and results of animal testing; and scores of exemptions protecting financial information from commercial interests involved in state processes.

The Sunshine Committee was formed in 2007 and tasked with reviewing exemptions to the Public Records Law, and recommending the repeal or revision of exemptions. But the volunteer committee has been hamstrung by limited resources, and the Legislature has rarely followed the committee’s recommendations; in recent years, its proposals have not even been drafted into bill form and given a legislative hearing.

Former Sunshine Committee Chairwoman Kathy George left the committee in frustration last year, and it seemed on the verge of disbanding. George wrote an essay in the WashCOG report in which she outlined the “grim” record of the committee’s recommendations: Five exemptions have been removed at the panel’s suggestion, while 135 have been added.

She wrote, “the Legislature’s hunger for hiding public records has been the biggest barrier to accomplishing the heady goals of the Sunshine Committee law.”

Cuillier described the year-by-year drip of new exemptions as just one of the effects of “secrecy creep – the tendency for governments to slowly tighten the spigot on openness, almost imperceptibly. Some agencies also erect roadblocks such as delayed responses to records requests and the imposition of costly fees. They apply exemptions too broadly or charge exorbitant fees. Enforcement of the laws is weak.

This creep affects not just Washington, but the entire country, Cuillier says. A decade ago, about half of all federal public-records requests, under the Freedom of Information Act, would get a response. Today that’s 13%, according to his analysis.

That’s a major problem for a democracy. In his essay in the WashCOG report, Cuillier outlines some of the benefits of open government arising from his research.

“Freedom of information laws and practices lead to cleaner drinking water, lower sex-offender recidivism, fewer food service complaints, increased trust in government institutions, reduced corruption, and they help parents make better school choices for their children,” he wrote.

And for those who see the issue as merely a pet issue of the press, Cuillier noted that media requests make up a minority of all public-records requests – between 1% and 10%, depending on the agency involved. Commercial interests represent around two-thirds of all requests, he said.

‘Secrecy spreads’

Agencies frequently press for more obstacles to record access, and they usually cite the burden of responding to requests. During the last session, for example, the Washington Association of Cities proposed legislation that would have attempted to deal with a small minority of records requesters who make enormous, “vexatious” requests by setting up limits on when requesters can take a records denial to court.

The legislation – which the association wrote itself, according to reporting in Crosscut – was meant to address what is a common complaint from public officials who are asked to follow the Public Records Act.

“It had to do with frivolous requests, the dollars and the time spent is astronomical, and so we were trying to curtail that,” House Deputy Majority Leader Rep. Larry Springer, D-Kirkland, told Crosscut at the time.

The proposal did not move forward this year. But the nature of the complaint is persistent – agencies often describe the burden of following the Public Records Act as overwhelming.

The WashCOG report presents a much different picture. Overall, state and local agencies spent less than 0.1% on responding to the records act between 2018 and 2021; similarly, fewer than 0.1% of record requests result in a court challenge.

“Nonetheless, state legislators have repeatedly entertained proposals that would make it harder for requesters to challenge agency actions and prevail,” the report says. “Lawmakers often contend such steps are needed to curtail ‘excessive’ public records lawsuits. But in Washington state we enforce the PRA with civil litigation. Proposals that make it harder for requesters to sue and prevail weaken our enforcement of the PRA. Without effective enforcement, our open records laws are more easily evaded. Secrecy spreads.”

Open-government advocates say agencies tend to underfund their records offices, leading to backlogs that produce wait times for documents much longer than the five days called for in the law. The report noted that the average wait time has grown from 15 days in 2019 to 23 days in 2022.

But it’s not consistent across the board. Some agencies do a good job, open-government advocates acknowledge, and it varies greatly agency to agency.

The report compares the average time taken to respond to a records request by the cities of Seattle, Spokane and Tacoma between 2017 and 2022. Seattle was consistently the longest, at an average of almost 60 days in 2022, and Spokane was next at about 30. Tacoma was the fastest at just over 20.

Toby Nixon, a longtime public access champion and the incoming chairman of the Sunshine Committee, said that the least responsive agencies – he cited the University of Washington and Seattle Police Department – can drag out the process significantly.

“It can take years and years sometimes to get information,” he said.

In addition, the report outlines an increasing use by government officials of private, nongovernmental methods of communicating to skirt the records law. Some elected officials use personal cellphones to conduct government business, and state policy calls for communications over chat functions – such as Microsoft Teams – to be automatically deleted after seven days.

“While we’re on the phone right now, hundreds, or thousands, of messages are being deleted automatically,” Nixon said.

Privilege discovered

The most prominent challenge to the Public Records Act in recent years has been the resistance of the Legislature to following the law itself. The state Supreme Court ruled in 2019, in a case brought by the Associated Press, that the Legislature, which had essentially exempted itself from the open-records law, was indeed required to follow it.

By that point, lawmakers had already been trying to sneak around it.

Most egregiously, they passed a bill not long before the court ruled on exempting themselves from the act. This legislation, snuck through without a word of debate, drew outrage from the press and public, and Gov. Jay Inslee quickly vetoed it.

Late last year, reporters discovered that a quieter, more subtle resistance had cropped up. Legislative leaders had begun applying a “legislative privilege” exemption when denying or redacting records it was releasing. There was no such privilege on the books, and open-government advocates had never seen it asserted before.

“They kind of discovered that privilege after the Public Records Act debacle,” Nixon said. “They started quietly implementing it – so quietly that many legislators didn’t even know it was being done on their behalf.”

Nixon noted that many, many lawmakers had been outspoken advocates of government transparency when it didn’t apply to them.

“Before the AP case, it was really easy for legislators to talk about their commitment to transparency – because they were talking about transparency for others,” he said.

Legislative leaders like Senate Majority Leader Andy Billig and House Speaker Laurie Jinkins had the exemption applied to legislative emails and records – some lawmakers said they were unaware it had been done to their records. The privilege claim was based on the constitutional protection against lawmakers being sanctioned from “words spoken in debate.”

Sunshine advocates ridiculed the argument – but the Legislature advanced it in court, winning two favorable rulings that concluded lawmakers may keep secret records of their internal deliberations. That question is not fully settled, but it’s a grim portent in the eyes of open-government advocates, who point out that the very purpose of public-records laws is to open the deliberative process to the public, including who is communicating with lawmakers and how.

It doesn’t take a law, after all, to let the public know what’s happened once decisions are final.

Reactions from lawmakers have varied, but most have supported the privilege, in principle at least. The Olympian recently polled lawmakers, and a majority would not pledge to avoid using the privilege to withhold records.

Lawmakers have also defended the privilege by noting that it’s a concept that exists in many other states, where courts have upheld it.

“This privilege concept, where ‘I’m in charge so I don’t have to follow the law’ – I wish courts would stop going along with it,” Cuillier said.

There are a variety of ways to push back against the creep toward secrecy, according to the report and its authors.

Cuillier said Washington could follow the lead of other states and establish an agency dedicated to protecting public access to records, assisting citizens in using the law and getting information, and training public officials. Nixon said that, as the new chairman of the Sunshine Committee, he wants to make an effort to be an even more vigorous champion of the committee’s work with lawmakers.

Overall, though, government officials tend to move toward greater transparency only when pushed by the public. Mike Fancher, the former executive editor of the Seattle Times and president of WashCOG, wrote a concluding essay in the report calling for the public to assert its right to know.

“Nothing is more important to keeping the government open and accountable than public activism,” he wrote in the report. “When the people speak, politicians listen.”