Washington State Auditor's Report Documents High Costs of Public Records Act and Underscores Need for Reform
September 20, 2016 posted by Eric Christensen
Although adopted for the noble purposes of ensuring transparency and openness in government, the Washington Public Records Act (“PRA”) is now in need of serious reform to reduce the costs it imposes on government and taxpayers, to reflect the switch from paper to electronic records, and to discourage abuse of the Act for purposes having nothing to do with promoting open government. The high cost of complying with the PRA has become increasingly obvious in recent years, the best example being the near-bankruptcy of the City of Gold Bar, driven by the high costs of responding to and litigating repeated, burdensome records requests from a small group of local gadflies. A recent performance audit issued by the Washington State Auditor for the first time quantifies this burden, finding that state and local agencies in the state spent more than $60 million in 2015 responding to more than 285,000 public records requests. Taxpayers ultimately bear nearly all of these costs because the PRA allows agencies to recover the costs of copying records, but not the costs of staff time and litigation, which make the vast majority of costs imposed by the PRA.
The $60 million reported by the Auditor is a significant underestimate of true costs of compliance for several reasons. First, only 39% of the agencies subject to the PRA responded to the Auditor’s survey. Second, the Auditor's report did not attempt to document the substantial costs the PRA imposes on the state's court system, which must resolve all disputes involving the law, making the PRA one of the most frequently litigated statutes. Third, the Auditor's report does not attempt to estimate the costs imposed on private individuals and companies, who generally bear the bulk of litigation costs when they seek to prevent the public release of private or competitively sensitive information. Finally, the burden is increasing. The Auditor’s report documents a 36% increase in records requests from 2011 through mid-2015 and the mean cost of responding to requests has risen 70% in the same time period, and now exceeds $80,000.
Fortunately, the Auditor’s report suggests a number of sensible reforms that would reduce the burdens the PRA places on government agencies without compromising the law’s core goals of government openness and accountability. These include:
1. Distinguishing Between Requesters: Under current orthodoxy, government agencies may not inquire into a requester’s purposes for seeking records. This makes little sense. There is obviously a big difference between, for example, a news agency seeking documents of government mismanagement or abuse, a private firm seeking to obtain the bids submitted to a government agency by its rivals, and a person using the PRA to pursue a personal vendetta. And it does not promote the purposes of the PRA to allow private companies to obtain valuable commercial information at taxpayer expense or to treat an individual using the PRA as a weapon of harassment the same as a citizen using the PRA in good faith. But that it how the law currently works.
2. Allow Government to Recover Its Full Costs: Governments should be able to recover their costs for staff time and other expenses where, for example, information is sought only for private commercial use or PRA privileges are abused through repeated, overly-broad, and burdensome records requests.
3. Update the PRA for the Modern Era: The PRA was originally enacted in 1973, before the electronic age. The law urgently needs to be updated to reflect the fact that nearly all government records are now stored in electronic form. As the Auditor’s report documents, this can create serious problems that could not have been contemplated in 1973. For example, the Washington State Patrol received a request for all video footage from its dashboard cameras, and determined it would take 563 years to review all the footage, redact private information such as the faces of innocent bystanders, and provide it to the requester.
4. Clarify the Law. The PRA includes more than 400 exemptions that protect specific categories of information from public release. Often, the exemptions appear to have been adopted ad hoc to satisfy immediate needs without any consideration of the law’s broader goals or the conceptual purposes of the exemptions. For example, private companies submitting bids for the state ferry system, for state highway projects, or for health services for the state’s Industrial Insurance program are allowed to protect proprietary bidding information, but there are no equivalent protections for companies submitting bids to hundreds of other Washington agencies or programs. The complexity of the law adds substantially to the costs of compliance. Simplification and rationalization of the PRA’s many exemptions would go far toward reducing the costs it imposes on taxpayers and easing the burden faced by individuals legitimately inquiring into the operations of their government.
5. Non-litigation Dispute Resolution. When disputes arise under the PRA, the current law provides that the dispute must be resolved in Superior Court, which can be expensive and daunting for both government agencies and individuals seeking records, as well as burdensome for the already-crowded court system. The Auditor’s report sensibly suggests that a good alternative would be to develop a specialized dispute resolution process overseen by the Attorney General’s office. This kind of process could resolve disputes about records requests at a lower cost and more quickly than the courts.
The Auditor’s report makes clear that the PRA has created a large and growing burden on state and local government agencies, often compromising their ability to deliver basic services. By shining the spotlight on these costs, as well as a number of common-sense solutions, the report may spur long-overdue reforms to the PRA