Pasco backs bill seeking outside review of public records requests

By Michelle Dupler, Tri-City HeraldMarch 3, 2013 

PASCO -- Pasco officials say an increasing number of large public records requests are eating up staff time and taxpayer dollars, and the city has no recourse to complain that a request is made to harass the city or tie up resources.

City Manager Gary Crutchfield said the city would like to have an option for an independent reviewer to decide when a request is intended to be abusive, and to allow for an injunction when it's determined a request is intended as punitive.

"Right now there is no referee," he said. "It's like playing a game of basketball with no referee, and the other guy is getting pretty physical."

So city officials have backed House Bill 1128, which would allow for the kind of process Crutchfield described. The city produced a video available at that highlights some of the issues Crutchfield and city council members say they're contending with when it comes to public records requests.

But opponents of the legislation say agencies already have options under the state's public records laws for dealing with requests that are large or overly broad, or when it appears a requester is on a "fishing expedition."

The bill would allow a court to issue an injunction against a person or entity -- except the news media -- requesting public records when there's enough evidence the request was made with the intent to harass or intimidate an agency or its employees; if it will greatly interfere with the agency's work; if it would threaten people named in the records; or if fulfilling the request would assist in criminal activity.

Another portion of the bill would allow a public agency to limit the amount of time it spends responding to public records requests as long as documents such as budgets, agendas, meeting minutes, resolutions, ordinances and some contracts are made available. The bill is in the hands of the House Rules Committee to determine whether it will go to a floor vote.

Cities such as Pasco have said they're spending more and more time responding to public records requests. Pasco officials said during a recent meeting that the city clerk, who is the official public records officer, has gone from spending a few hours each week responding to requests at the end of 2011 to spending about 36 hours each week, or about 90 percent of the time she's at work, by the end of 2012.

And Crutchfield estimated the city spent more than $100,000 just in staff time on public records requests in 2012. That doesn't include the cost of lawsuits over public records brought by Franklin County resident Roger Lenk -- who in 2012 was awarded more than $12,000 in penalties from the city over records he didn't receive on time, and who filed two new lawsuits over records requests in early February.

One of the lawsuits since has been dismissed once Lenk learned he wouldn't get what he asked for about a proposed aquatics center until 2016.

Lenk told the Herald he thought the suit was a waste of time and money because the aquatics center would go to a vote well before a lawsuit is resolved and he gets the records.

But he believes the city is being disingenuous when it tells him it'll take more than three years to provide the documents, some of which he believes are simple requests and could be easily provided, such as a copy of the city's public records retention policy he requested in October 2011 and has been told he won't receive until February 2016.

An email the Herald received from Crutchfield on Friday said the city council hasn't adopted a policy on records retention but has an administrative practice in place to follow the state archivist's recommendations as a minimum period for retention.

Lenk was told in a Feb. 5 letter from the city clerk that his latest request for records related to the aquatics center would take about 60 days to research and fulfill, but that he won't get the records for more than three years because it's going to the back of the line behind other requests he's made.

The city recently proposed creating a fast track and slow track for requests that would let simple requests, such as someone asking for a copy of a building permit, to jump to the front of the line while the city spends time on larger requests such as Lenk's. The council is set to vote on that policy Monday.

Tim Ford, the state's assistant attorney general for government accountability, said in a Feb. 28 letter to the Herald that such a policy could be consistent with an agency's obligation to "provide the fullest assistance to inquirers and the most timely possible action on requests for information."

An agency couldn't, for example, adopt a policy sending the simple requests to the back of the line until a larger earlier request is completed because it must make records promptly available, and not necessarily in the order of the request.

But he cautioned against agencies ignoring large requests while only fulfilling smaller requests.

"The agency should strike a balance between fulfilling small and large requests," Ford said.

Opponents of the proposed injunction bill have said that agencies have ways of dealing with large requests without passing a new law -- they can ask the requester for clarification and if the requester doesn't respond, the agency has no obligation to fulfill the request or continue researching.

Crutchfield said closing the request under those circumstances still may leave a city vulnerable to a lawsuit.

"Keep in mind the purpose of the (Public Records) Act and the fact that the law also says the city cannot deny a request simply because it is overly broad," he said.

And sometimes the person requesting the records might offer a clarification that still doesn't shed much light on what he or she wants, leaving the city having to provide voluminous records the requester may not have intended to ask for, Crutchfield said.

"In other words, it is pretty easy for a requester to respond to a clarification request with little actual clarification and leave the city in the position that it must, for all practical considerations, retrieve as much as it reasonably can and be prepared to explain any shortcoming to the court, if necessary," he said.

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