My experience with public records contradicts Western’s narrative

Guest column by Erasmus Baxter

As a student journalist responsible for a number of public records requests, I want to respond to some of the assertions made in the university’s response to the journalism professors’ editorial about Western’s handling of public records.

While it may seem like a niche issue, the accessibility of records has a huge impact on what Western students and faculty are able to know about the functioning of the university. From the undisclosed contract to bring in more international students to handling of sexual harassment and assault, all have required public records requests to get the facts out. The speed with which those records are able to be accessed is especially crucial with the limited time student reporters have to wait, as most reporting and editing positions end after a quarter.

While I know Dolapo Akinrinade, Paul Mueller and Jennifer Sloan are hardworking and well-intentioned public servants, my experience does not seem to square with what they describe in the column—particularly the assertion Western scrupulously follows records laws.

In one instance, the records office redacted all information about the amount Western would pay Study Group, a company that recruits international students, from its contract with Western, claiming it was a trade secret. However, Washington state courts have affirmed amounts paid for services by government agencies are public record, as recently as in Belo Management Services, Inc. v. Click! Network (2014).

In another instance, I received a call from the records officer last spring asking to delay providing records because she was leaving on vacation. This is not a reason laid out in state law to delay providing records, and is a sign that Western isn’t providing the employees or support necessary to fulfill its legal duties.

In a third instance, earlier this month, I did not receive contact from the record’s office on the date they set to provide records. When I followed up the next day via email, I was informed that the deadline had been extended an additional 18 days, after waiting three weeks already, to give named employees time to consider seeking injunctions. Many of those employees could have been reached by a simple email, or at least contacted in the previous three weeks in which the records were being processed.

On this point, the Risk, Compliance and Policy Services employees who wrote the editorial said the ability to seek injunctions is one source of delays beyond their control. However, in my experience, I have never had anyone actually seek an injunction for records I requested.

Instead, the delays have come from the records officer contacting named people and giving them time to consider seeking injunctions, something that is the records officer’s choice to do.

While they are required to give employees notice for items from personnel files, even then it is only seven days in advance. Washington’s administrative code also notes that most agencies only allow 10 days, if they decide to give notice.

State law is clear that an injunction can only be granted if the release of the document is clearly not in the public interest or would irreparably harm government function. Many of these records would be highly unlikely to meet either criteria.

State law is also clear that the burden of the Public Records Act is toward transparency, even going so far as to legally require records officers to be helpful. Not using discretion in exercising the option to inform third parties feels like an impediment to this purpose, and slows important watchdog reporting.

In regards to the North Carolina case, while obviously it is in a different state, the records law is similar to Washington’s in its philosophical insistence that records be as open as possible. The editorial mentions that federal privacy law, or FERPA, requires names be redacted unless a waiver is signed. What it doesn’t mention is a FERPA exemption the case hinged upon, which allows the release of names in cases where a student has been found to have committed a sex crime or crime of violence.

Furthermore, while the editorial writers complain about the broad scope of requests, that scope is often necessitated by the university’s unwillingness to be transparent and discuss what records might be out there or what is happening on campus.

Many records requests have come from increased coverage of sexual assault and harassment at Western. The records have been crucial to covering these cases, and I can say for certain that student journalists intend to keep covering this issue as thoroughly as we can and as students demand.

If departments are being swamped by records requests, perhaps Western should consider hiring a full-time records officer to handle the issue, instead of trying to spread out the position’s responsibilities to multiple employees who have other jobs. They could also consider establishing an online records repository to allow access to some records requests, as most state and local agencies do and is literally recommended by law.

Western also lacks a dedicated viewing station for public records. When I inquired about viewing records to avoid the costs associated with copies, as is my legal right, I was told that I would have to sit in the records officer’s office, which was presented as being an inconvenience since she needed to do work in that office.

This lack of resources seems to reflect an institutional view of the records act as an obnoxious obligation instead of an opportunity to promote transparency.

Washington’s Public Records Act may be an inconvenience for the university, but it is an essential part of holding our government accountable. Complaining about the inconvenience is like complaining about the inconvenience of public debate on legislation; it would be less work for government without it, but then we wouldn’t be in a democracy. Instead of seeing public records as an inconvenience to be dealt with, or a danger to guard people against, Western should embrace its democratic duty and strive to be as transparent as possible.

 

Erasmus Baxter is a former Western Front editor-in-chief and the current editor-in-chief of the AS Review.

One comment

  • A few thoughts for you, from a guy does a lot of PRA stuff as a government lawyer (I’m the PRO for my office, among other tasks, which includes teaching PRA law and practice); who has been a successful plaintiff in a PRA suit; who is also the spouse of a faculty member at (another) state University; who has obtained a graduate degree at a state university here (my law degree was from a school in a different state), and who taught at that same state university and ran away after seeing the unethical conduct that pervaded (and still does) the place.

    1) The training provided in-house at a lot of places is just awful. Intellectually incestuous and utterly inadequate. I attend 20-30 hours of training a year just to try to be current and to get insights from others who have different experiences and problems to resolve than I do. You are correct in that it should not really be a part time position spread among several people (unless there are specific technical areas in which they have real expertise). I prevailed in my lawsuit, not because the PRO in question was a bad actor, but because her training sucked, and other people in the organization lied, apparently with the knowledge and concurrence of their legal counsel.

    2) The trade secret issue was probably incorrectly handled even under the standard as it was; certainly after the case decided by the Washington Supreme Court just two days ago.

    3) There are some folks in specific positions at the AGO that are real savvy on these issues and for whom I have a lot of respect, but I have seen assigned agency advisors (AAGs) really screw things up in the PRA context. What I mean is so badly that they could not have done worse if they have hired a choreographer and the “Mayhem” character from the Allstate commercials; well past the point of malpractice.

    4) Most if not all state agencies have to pay for everything an AAG does for them (which is a circular budget concept), and so they don’t ask for advice as much as they should. This is stupid; investing in good advice is far better than screwing up and then trying to polish the results. My office is relatively heavily staffed in the civil division compared to most others, and we have a pretty decent risk/claims and litigation history as a result. (Not just in PRA stuff.)

    5) I’ve seen pretty shabby work by agency advisor AAGs, so even if asked, there is no assurance of good advice. These observations have been in both my personal and professional lives, and it is both offensive and frightening. (This also is not related to the political party of the elected AG, although in the 25 years I have lived here, the current one appears to be the worst.) Some of the conduct we have seen is so bad, we truly cannot tell if it is dishonest or simple malpractice.

    6) The quality of work I see from the education division of the AGO is often unbelievably bad. Tolerance of conduct that was clearly criminal, and they didn’t even know it was a civil liability problem, let alone criminal. This is not knew; I have seen it for over 20 years.

    7) To be fair to the employee who went on vacation, I am pretty sure you would lose badly if you tried to assert that was not a justified basis for an extension. I have seen no authority at all that would support your position; PRA requests do not get to impinge on other duties (RCW 42.56.100), and I am sure that based on case law from other areas that the vacation issue would not come out the way you assert. While the AGO model rules (WAC 44-14-04003 assert that timely responses may require additional employees being assigned or even hired, the reality is that a smaller entity is likely to not be able to have more than one FTE and a part-time substitute may not be as effective as just waiting. (In my office, we do some things to work around my office my absence on simple requests, but that’s not always realistic.)

    8) While the injunctive relief option is often pointless, as you correctly point out, the PRA here is completely insensitive to the safety and privacy rights of the public (not just employees), and a couple of federal court cases have taken some significant swipes at the state law. However, good practice in providing that notice includes knowing what the local court schedule is, and giving something in the nature of 2 weeks (10 working days) notice with an honest to goodness drop-dead date. (I’ve told people what the local court calendar looks like; what they need to do to bring us into court, and that if not enjoined by a certain time on a certain date, they are out of luck.)

    9) FERPA is a joke. It is on its best days toothless, and provides no protection for students. Among other things, all records should be presumed not releasable, with an “opt-in” provision, and administrators who breach the law should forfeit their positions and eligibility for future employment. Period. Criminal investigation records should not be covered by FERPA, and if any investigation is done by off-campus LE, are not. Anyone who relies on internal processes for criminal matters, especially sex crimes, is a fool. I have never seen any sign that any University in the US does anything well in that arena other than the LE component. Anyone who thinks the events at Penn State, MSU, and USC are unusual is a complacent fool. They are the norm.

    10) Knowledge of PRA law and practice is a moving target, and not something to address lightly. Very few of the requesters with whom I deal are engaged in any sort of vexatious behavior. However, there are places that experience just awful conduct, too. It’s a more complex picture than most people know.

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