State legislators propose fees for public info

 

The bill reads as follows:  “The legislature finds that some individuals use the public records act in such a way that it burdens the government entity without providing a balancing benefit to the people of Washington. The act was not put in place so that individuals could use it to monopolize employees’ time to the detriment of other citizens.  The intent of this act is to create a balance between those that desire public information and the competing obligations of government employees.”  

 

In a report on the first hearing of the bill on January 26 in the House State Government and Tribal Affairs Committee, the Washington House Republicans website ([url=http://www.hrc.leg.wa.gov]http://www.hrc.leg.wa.gov[/url]) said the bill would allow municipalities to assess a fee for any requests for public documents that are “excessive” or take “an inordinate amount of staff time and materials to produce.”  The wording of this bill identifies an inordinate amount of staff time as “more than five hours of employee time to produce within a month” and would “give agencies discretion in deciding when a fee would be appropriate.”  In addition, the report says, the bill seeks to “help deter public records requests that are deemed frivolous.”

 

Certainly we can all sympathize with the effect of recent cutbacks and staff layoffs in municipal agencies resulting in less time employees may have to conduct records searches.

 

And, we can likewise appreciate the fact that at least some requests are indeed excessive.  For example, take the case of Barbara Schwarz, who has the distinction of making more requests under the FOIA than any person since the act was passed in 1966.  According to the U.S. Department of Justice, Ms. Schwarz’s paperwork-intensive quest is to prove that, although she is legally a German citizen, she was actually born in 1956 inside the secret submarine base Chattanooga, which is located under the Great Salt Lake, and that she is actually the child of L. Ron Hubbard.  Just one of Schwartz’s searches alone produced a 2,370 page document and resulted in naming more than 3,000 defendants in a case brought before the US District Court in Washington, D.C.

  

However, layoffs and eccentric citizens aside, the more troubling aspect of Reps. Fagan and Alexander’s bill is that, while perhaps well intended, were it to pass, it would open the door to a veritable flood of subjectivity. 

 

First, for some time now, many municipalities have required those who receive copies of public documents pay the cost of photocopying.  However, as it is now written this bill would also allow any individual requester to have to “pay the personnel costs for the request during the month to complete the search and copying tasks for a search that took over five hours” and require that the fee be paid in advance.  It leaves unclear whether or not such a search would require a flat fee for the search no matter how long it took or whether fees could be assessed on time spent at some other rate over a period longer than five hours.

 

Second, if the requester must pay in advance, there is no provision for what happens if the search comes up empty or if the information presented by the agency is not what the individual requested.

 

Third, there is nothing in the bill that outlines whether this fee is based on the time it took to access the record, the difficulty of accessing a record or the whim of the agency.  This seems vague and thus unfair to both the individual requesting the information and the agency involved. 

 

Fourth, it does not deal with how a citizen requesting information could find out how long a search would actually take.  Only the agency employees would have this information, thus they alone could decide on whatever basis they wished how long it would take to conduct a search.  Since the agency only makes money on searches that take more than five hours, it would surely be tempting for an underfunded agency to NEVER conduct a search that took under five hours. 

 

Fifth, there is no clear definition of what constitutes “excessive.”  Is “excessive” based on the number of documents requested in a single visit?  The frequency with which an individual requests documents?  The fact that the clerk is sick and tired of dealing with the individual?

 

Sixth, likewise, there is no clear definition of what constitutes “frivolous.”  Is it more or less frivolous for me to want to know if my great grandfather really stole that cow he was accused of rustling back in 1872, or that there is reason to believe the school board held a secret meeting to decide what constitutes an “acceptable” prom dress?

 

Seventh, who actually has the right to determine any of this?  The clerk at the counter?  The department head?  The mayor?  The governor?

 

And finally, where do all these fees go?  In the general fund?  To fund the employee’s Christmas party?

 

Like many such bills that surface every legislative session, this one seems rife with a host of unintended consequences.  I applaud Reps Fagan and Alexander’s desire to lighten the load on municipal employees, but I suggest they go back to the drawing board on this one.