Spokane requires notary for some public records requests - ‘a waste of tax dollars,’ critics say

Clark Gable – one-time King of Hollywood, dashing star of “Gone with the Wind” and “Mutiny on the Bounty” – died in 1960, depriving him of the ability to make public records requests in the city of Spokane.

So when “Clark Gable” requested a list of names, salaries and job titles of “all city employees including law enforcement” officers this year, the city clerk’s office quickly realized it was a fake name.

Anonymity itself wasn’t the problem – nearly 15,000 records requests in Washington were anonymous in 2022. But Washington law prohibits the release of most “lists of individuals” if the requester plans to use it for “commercial purposes,” such as real estate agents requesting lists of code-enforcement complaints against property owners.

Spokane has long required requesters to sign a declaration that they wouldn’t use lists of names to make money, but “Clark Gable” inspired the city to up its ante: Since February, requesters who want to see those names have had to get that declaration notarized, certified by an official government witness.

This barrier was implemented shortly before Spokane’s recent efforts to improve the speed of providing public records. After an InvestigateWest story showed Spokane’s public records system was one of the slowest of major cities in the Northwest, it hired a new records staffer and is conducting an audit to speed up its records process.

In a statement, the city of Spokane said that the notary wasn’t intended to be a difficult barrier – requesters need to sign only one declaration a year and can get it notarized at City Hall – and that it was a step to ensure that state law was being followed.

But multiple records experts said that the requirement was absurd, unnecessary and likely to create more delays.

“What a waste of tax dollars,” said David Cuillier, director of the Brechner Freedom of Information Project, which advocates for public records. “What a waste of staff time. What a waste of the average person’s time. This is where it’s leading: harm to society with really no benefit.”

Toby Nixon, former president of the Washington Coalition for Open Government, argued that the problem isn’t just Spokane’s interpretation of the records law’s restriction – it’s the restriction itself. As legal precedents have evolved, the commercial purposes restriction has slowed down records for everyone, overloading clerks and causing public records to be taken off city websites. And it’s further strained clerks tasked with censoring information for some agencies and not others.

“We just need to eliminate that section of the law entirely,” Nixon said. “It would take a lot of the load off of these agencies if they didn’t have to police this.”

Yet many government agencies across the country have been going in the opposite direction, adding more hurdles to how records can be used.

Cuillier said scrutinizing the purposes of records requests flies in the face of how public records are understood across the globe.

“It shouldn’t matter who’s asking for it and why,” Cuillier said. “It shouldn’t matter. A record’s a record.”

Business loopholes

Public records aren’t used just to expose government dishonesty and inefficiency – they’re also worth big money. At the national level, Cuillier said, about two-thirds of requests are submitted by commercial interests.

“The reality is public records grease our economic machine,” Cuillier said. “Businesses rely on this information to survive.”

Data brokers like LexisNexis hoover up car accident data information to give to insurers. Real estate companies like Zillow gather housing data. Credit bureaus like Experian use court records and business filings to augment traditional credit card checks.

The ban on Washington agencies providing lists of individuals sought for “commercial purposes” has been a part of the state’s records law from the beginning, ever since voters passed the law in 1972. It was intended to prevent the public from being swarmed with junk mail from companies using the public records lists to target them.

Such restrictions vary depending on the states. Some, like New York, have similar restrictions as Washington. But the state of Idaho bans the government from even asking users how they plan to use public records. So do Pennsylvania and Florida. And then there are states like Oregon and Kentucky, where a requester’s intent doesn’t stop them from getting information but can impact how much they have to pay.

Across the country, many agencies have attempted to erect new hurdles depending on who’s requesting the records.

In Colorado, the Weld County Sheriff’s Office went the same route as Spokane, requiring the signature of a notary public to obtain public documents from his office. In New Jersey, a bill was proposed this year to dramatically restrict the reselling of data broker records, while in Kentucky, journalists now face the possibility of being charged high records fees like commercial requesters.

Richard Varn, director of the Coalition for Sensible Public Records Access, a records advocacy nonprofit that includes representatives from companies like Zillow and Experian on its board, argues that restricting or charging high fees for commercial records puts smaller companies at a disadvantage in the race for information.

“Bigger companies can get it and smaller companies can’t,” Varn said. “It hurts the market. It hurts the customer. It hurts openness and fairness.”

Some companies find a way around the rules by getting creative with the truth.

Earlier this year, InvestigateWest tested the responses of records systems of cities across the Pacific Northwest by asking for their log of record requests. A notable number of 2023 requests reviewed claimed to be students conducting research projects on topics such as which properties had issues with code enforcement, water liens and fire inspection – exactly the kind of info a house-flipper or real estate agent might be interested in.

“Sometimes people who are savvy – who have been through the process before – will say, ‘I’m doing research for a school project,’” said Tony Dinaro, records officer for Spokane County. “As long as they say that, we don’t have any recourse to come back and say, ‘We don’t believe you.’”

“The problem is there’s always workarounds,” Cuillier said. “People are going to figure out a way to get what they want.”

Craig Swapp – an accident attorney who has plastered multiple states with billboards featuring his gleaming grin and “One Call, That’s All” slogan – made more than 30,000 record requests of Washington State Patrol in the leadup to a 2016 lawsuit, swamping the patrol’s records division. Ultimately, a court found he’d violated federal driver’s license privacy laws.

Yet as far as Washington’s records law back then was concerned, he was untouchable: He’d never requested a list – just every single report that would make up such a list.

Several records experts cited the anecdote as an example of how Washington’s rule is effectively the worst of both worlds. Companies are often still able to get the information they want.

The law just forces companies to request a whole lot more records to do it.Making a hard job harder

When businesses do request lists of names, meanwhile, the law doesn’t let clerks simply refuse to fill the request. Instead, clerks have to go through line-by-line, carefully redacting the list of names that would have gone uncensored for non-commercial requesters.

“If it’s a large Excel spreadsheet where names are scattered through the spreadsheet, it can be time-consuming,” Spokane City Clerk Terri Pfister wrote in a statement to InvestigateWest.

For example, businesses love to request the list of counties’ unclaimed property – hoping to track down the people the county owes money in exchange for a finder’s fee. It takes a staff member roughly four to 10 hours to sift through thousands of entries and black out the names of people (“Stanley Morgan”) but not the names of businesses (“Morgan Stanley”).

“It always makes that request take longer to fulfill,” Dinaro noted. “It makes our work harder.”

Each time there’s a new request for the constantly changing list, a staffer has to start all over again. Multiply that by 10 to 15 such requests a year, and entire weeks are lost.

In the past decade, the legal pressure on clerks to scrutinize records requests for “commercial purposes” has gotten worse.

In a 2016 case – part of the long-running war over records between public sector employee unions and Washington’s anti-union Freedom Foundation – an appeals court declared that agencies had to actively investigate requesters who might try to use a list of people to make money.

“Each agency bears its own liability for failure to comply” with the records laws, Pfister wrote.

Some simply tacked on a check box to accompany public records requests. Others asked requesters to return formally signed “Commercial Purposes Declarations” swearing they wouldn’t make money off records. Spokane eventually concluded that to truly be sure, they had to get it verified by a notary public.

Bit by bit, easy access to public records has been chipped away.

Spokane County used to simply post the county’s basic list of property owners online, easy for anyone to download. But thanks to a 2019 attorney general’s opinion declaring that even those records had to be redacted if requested for business purposes, the county deleted the owner info from the list on their website.

“It’s a hackneyed joke, but if you ask 10 public records lawyers, you’ll get 11 opinions” about whether taking the records off the website was necessary, Dinaro said.

But plenty of government agencies are happy to err on the side of less liability, even if it means sacrificing transparency.

Cultures of opacity

Data brokers and other big businesses have lobbied and sued for equal records access. In Kentucky, Zillow, the real estate company, sued over huge fees for property records, arguing that treating commercial requests differently was unconstitutional. A federal court ruling in 2022 declined to throw out the whole provision but ultimately declared that the exemption in the law for newspapers was unconstitutional. Some agencies declared that they would have to start charging journalists more for records.

“I don’t know that anyone wanted that outcome,” said Amye Bensenhaver, with the Kentucky Open Government Coalition. It’s currently being appealed at the 6th U.S. Circuit Court of Appeals.

The fight over public records is cultural as much as legal: There was a time when a big list of individual names – nearly everyone in the city’s name, home address and phone number – were dropped on doorsteps, the kind of exposure that may horrify people today.

On the other hand, data companies now have comically detailed information on consumer habits, demographic behaviors, and even appearances at a protest or an abortion clinic. That doesn’t come from public records requests, but from data passively collected by websites and smartphone apps, which is then sold and resold.

In comparison, Cuillier argues, the risk of creating too many people saying “if I can find out who got a building permit, I could send them solicitations to buy my tools” are pretty low.

There are a slew of states that don’t have the commercial purposes restriction, and it isn’t clear that they are more overloaded with requests than Washington.

Besides, Cuillier argued, what’s the harm in a little capitalism?

“Is it really so wrong to let people make money on records?” Cuillier said. “Why is that a sin in America?”InvestigateWest (invw.org) is an independent news nonprofit dedicated to investigative journalism in the Pacific Northwest. A Report for America corps member, Daniel Walters covers democracy and extremism across the region. He can be reached at daniel@invw.org.