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Well, Does “Democracy [Die] in Darkness,” Or Not?

“It’s Daylight Saving Time!!”

Winter is just getting started. And with winter comes darkness. Of the skies, to be sure, but unfortunately sometimes of the political variety as well. With a new administration set to take the reins in Olympia this month, it is worth focusing on a perennial shortcoming of Evergreen governance that regularly leaves us Washingtonians, well, in the dark. For decades now, government at every level—from dog catchers to governors—have run roughshod over the people’s longstanding right under the Public Records Act (“PRA”) to “see how the sausage is made,” so to speak. In other words, to see anything and everything the government produces in its internal operations barring a small number of sensitive materials—e.g., police communications regarding an open criminal investigation.

Passed via ballot initiative in 1972, the PRA is a vital component keeping our public servants accountable. In addition to state-legislative records, it requires “every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district” or “any office, department, division, bureau, board, commission, or agency thereof, or other local public agency” to produce any and all non-privileged items (emails, memos, voicemails, etc.) upon public request. While most such requests are honored, more than enough are rejected, stonewalled, or launched into “ongoing” purgatory to establish a pattern. Not a vast conspiracy, of course, but an obvious—and some might say natural—disinclination—against disclosure wherever an excuse for withholding is even remotely plausible. Indeed, fighting this tendency is one of CADF’s founding agendas, and in our short few years (so far!) we have racked up quite a record taking public agencies to task, with one such case now pending before the state supreme court.

But short of a Davidesque slingshot to Goliath’s eye—i.e., a supreme-court ruling which wholesale adopts CADF’s (correct) reading of the PRA—at least some state, county, and municipal administrators will, inevitably, continue abusing the process. Official obfuscation is especially troubling in those cases that deserve the greatest public exposure: a lawmaker who changed their vote at the last minute, say, or a whistleblower apparently fired for refusing to participate in a scheme to hide the true consumer costs of a half-baked cap-and-trade program.

As we await the end of daylight savings time—it cannot come sooner!—it is worth recalling the words of Justice Louis Brandeis (pictured above), who, prior to his Supreme Court tenure, was a muckraking lawyer dead set on untangling a labyrinth of public-private collusions. In Other People’s Money and How the Bankers Use It (1914), Brandeis observed that “Sunlight is said to be the best of disinfectants, electric light the most efficient policeman.” In the century-plus since, Americans have grown accustomed to the right to transparency in government but have found, in many cases—e.g., post-9/11 federal Freedom-of-Information-Act (“FOIA”) requests—have discovered officialdom anything but accommodating.

Public ignorance is not the only price we pay when government agents hide documents behind a miasma of ostensible exceptions, exemptions, and evasions embedded in records-request laws. Because taxpayers foot the legal bills, it is that much easier for Washington officials, at least, to fight asks that, conveniently, could expose their agency to civil and perhaps even criminal liabilities far more dire than the consequences of merely denying the request. Governor-elect Bob Ferguson (at the end of his long and checkered tenure as our attorney general) has made increased transparency by curbing public-records fights a staple of his administration’s agenda. We shall see. In the meantime, such fights abound and often result in huge legal bills. But with taxpayers footing the bill, there is little incentive for officials not to hinder requests that, if honored, might teach the public some inconvenient truths about sausage-making. Cascade PBS recently found that between February 2023 and April 2024 the Legislature paid Summit Law Group $150,000 fighting just two eminently avoidable PRA lawsuits. This should irk all of us—Democrat, Republican, and everyone in between. In 2023, polling firm McClatchy found that 82% of voters agreed that lawmakers should not hide behind legislative privilege to stymie a public-records production. Remarkably—but, again, perhaps not surprisingly—a separate McClatchy survey found that less than half of our state legislators agree. So much for representing the people.

It would be impossible to calculate the total sum Washington governments—from Olympia all the way down to Beaux Arts Village (at 0.1 square miles, the state’s smallest municipality)—have paid since 1972 to fight PRA requests. It is not a stretch, however, to ballpark somewhere in the tens, if not hundreds of millions. Small when you consider that the state’s annual outgoing Inslee administration this year announced it will spend $10 million dollars renovating each of Washington’s 126 rest stops. Still, hardly chump change, and certainly excessive given how few such fights are justified in light of the PRA’s broad scope and purpose:

The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.

RCW § 42.56.020. Of course, the costs of undermining the PRA’s broad ambit can be counted in more than just dollars. In 2017, the Washington Post self-righteously and self-satisfiedly (not a real word, I know) changed its slogan to “Democracy Dies in Darkness.” They had a point, albeit directed, misguidedly, at a President who is not exactly one to keep his plans (or “concepts of plans”) close to the vest. But the quote certainly has salience, and is germane to the damage official obfuscation works on the public’s trust. It erodes it, and helps to foster an us-versus-them mentality between voters and their representatives. One that petrifies and deepens with every groundless challenge to a PRA request.

Even pointless and burdensome requests must be honored; heck, even stupid ones!! If I want all the records related to a WSDOT company picnic, it is not up to the government to “decide what is good for the people to know and what is not good for them to know.” And, producing even stupid, pointless, and/or burdensome records requests is still cheaper, in dollars and public trust, than fighting tooth-and-nail to keep the really important ones from ever seeing the light of day.

Alki and Happy New Year,

Sam Spiegelman