Is Washington's Public Records Law Being Abused By Seattle?

SEATTLE, WA — Three years ago, Seattle resident Michael Maddux attended a virtual town hall hosted by the Seattle police through the app NextDoor. As he watched his neighbors ask police questions, he wondered how NextDoor and the police department coordinated the event.

So, he filed a public records request. He asked Seattle police for any record about planning or contact between the department and NextDoor. He filed the request on Feb 19, 2016, hoping to use the material for his blog, The Hashtag.

As of March 8, 2019, he still hasn’t received all the information. The department has dripped out 20 different installments so far — the 21st will apparently arrive soon.

“To date, SPD has missed every self-imposed deadline, and for a while they actually forgot about my [request] and were alerted via a tweet I sent that I hadn't received an installment in months,” he said in an email recently.

Maddux’s experience is extreme, but it illustrates an issue Seattle has with records requests. Information sometimes comes in seemingly unending installments, turning requests into public records zombies that slouch forward one monthly step at a time.

Another example: on July 15, Patch requested “all emails sent or received by” Mayor Jenny Durkan’s staff that included the names of seven Seattle media outlets. Eight months later, installments are still coming in with no end in sight.

For Sunshine Week, we wanted to find out why Seattle uses installments and if there’s anything wrong with how they're going about it. State law allows cities to provide requests in installments, but governments also have to respond promptly and provide “reasonable” time estimates, and it appears Seattle is not doing that.

Like many cities, Seattle has its own public records policy, and it directly addresses installments:

“The City may elect to provide records on an installment basis to a requestor … The [records officer] should provide a reasonable estimate in the initial written response as to when the first installment will be available.”

That last part is important. It says that a records officer only has to tell someone when the first installment will be available. You must wait until you actually get that first installment to find out when the next will come, if a records officer includes that information.

The newest version of Seattle’s records policy was adopted in 2017, but it’s unclear if anyone noticed. Before it was adopted, there was a 90-minute public hearing on a June Friday afternoon in the Seattle Municipal Tower, and a public notice published in the Daily Journal of Commerce. The policy was filed with the City Clerk on July 21, 2017, but it didn’t get voted on by City Council.

The policy also gives the city's public records officers a lot of leeway as far as how long they can take with a request. And many of those records officers appear overloaded with work.

On May 25, 2018, Patch requested records from the Seattle Fire Department related to 10 discipline investigations. That request still hasn't been fully filled. The final installment should come in April.

“The reason for the drawn-out processing of the request is due to the large volume of requests we receive and my ability to balance the workload,” SFD records officer Evan Ward wrote in an email recently, noting that he had about 61 open requests at the time.

Records requests are up 22 percent citywide from 2016 (but did drop by a few between 2017 and 2018). Durkan’s office on its own saw a 6.2 percent increase between 2016, when Ed Murray was mayor, and 2018. But between 2017 and 2018, requests jumped 36 percent. Mark Prentice, Durkan's spokesman, said that the mayor’s office has not increased public records staff to keep up.

Toby Nixon, head of the Washington Council for Open Government (WACOG) and a Kirkland City Councilman, said that a government not increasing staff to keep up with request volume skirts state law.

“Agencies that routinely spread responses over time without tracking their performance are failing to meet the requirement in the [state records act] that they ‘provide for the fullest assistance to inquirers and the most timely possible action on requests for information,’” Nixon told Patch. “They aren’t required to put police officers and firefighters to work searching records, but neither can they allow requests to languish for years because they have knowingly and intentionally starved the public records function of resources.”

Other Seattle reporters have experienced zombie records requests on both controversial and relatively non-controversial subjects.

Erica Barnett, founder of The C Is For Crank, and who has covered Seattle City Hall since the early 2000s, agreed that staff levels are a problem, but some requests take an “excessive” amount of time. Last April, she wrote a story about a company that Seattle might use to provide free Wi-Fi downtown. She filed a records request to get some details, and the results are still trickling in.

“This ended up being a multi-agency request, but the amount of time it has taken is excessive by any standard,” she said.

Kevin Schofield, who runs the city hall news site SCC Insight, provided two examples. One request he made in April 2018 asked for records related to Seattle police scheduling software. The request was complete on Jan. 2 after seven installments.

On a more controversial topic, on June 12, 2018, Schofield asked for City Council communications over a six-day period about the repeal of the head tax. The full request wasn’t complete until November. It took two months before he received a set of text messages showing that the mayor’s office and City Council members talked in private about repeal votes, a possible violation of the state open meetings law.

It should be noted: Seattle was sued twice in 2018 over open meetings law violations, and on March 5 settled one of those suits. Durkan's communications staff have also been called out for a lack of transparency.

Schofield’s request demonstrates why speed is important for records requests. Information can expire, and many reporters believe that government officials use the records request process to delay the release of newsworthy material.

“I do think some departments use delays intentionally to keep information out of reporters' hands until a news opportunity has passed, or demand that reporters submit a records request for information that they have right at their fingertips, as happened to me just last week,” Barnett said.

In November, the Seattle Times revealed that Durkan’s staff had communicated about the head tax on private email accounts. Those records only surfaced because of a private lawsuit. Durkan’s office declined to answer questions from Patch about it, so we filed a records request seeking emails from key Durkan officials around the time the Times story published. The intent was to see if Durkan's staff were strategizing on how to talk to the press about the issue.

Two installments have come so far with more on the way. It’s unclear when the rest will arrive, but when they do, the memory of that November private email revelation will have faded.

Prentice, Durkan’s spokesman, did not answer a question about whether the city uses the public records process to delay information. But mayoral staff do keep track of records requests, and discuss how and when they should be released.

For example, in July 2018, a KUOW reporter requested the calendars of Durkan and deputy mayors Michael Fong and Shefali Ranganathan, according to documents Patch received in a records request. On Nov. 29, a public records officer emailed Fong and Ranganathan alerting them that the calendars were going to be released.

Ranganathan responded that she wanted to discuss the records before the release. The records officer replied that she would hold off and only release Fong’s calendar. But then Fong interjected, delaying the release of records further.

“Well, if we are going to review based on deliberative process – I need to do the same. I’m seeing this release for the first time right now,” he wrote in an email.

Nixon says that some governments abuse the installment process, either to blunt the release of information or because they don't want to hire staff to do the job.

“The provision in the law allowing installments is not intended to allow stretching out responses over long periods in an attempt to fatigue requesters into abandoning their requests,” he said.

In Kirkland, the city closely tracks requests. Kirkland releases records in installments when requests spike, but will also increase staff if necessary, Nixon said. In November, Patch requested information on hundreds of 911 calls from Kirkland police. The majority of the request was filled in just over two weeks.

One option for citizens who think they’re getting the runaround: file a lawsuit.

Maddux, the blogger who’s been waiting three years for records, went on to work as a staff policy advisor for Councilwoman Teresa Mosqueda. During his training at City Hall he learned that fines for violating the state records law can be up to $100 per day. At that rate, fines for the delay in responding to his NextDoor request could be more than $100,000.

“I've reached out to an attorney for possible legal action — three years is excessive for what I believe is a very narrow request,” he said.