Public records requests could lead to call for tax hike

By Polly Keary, Editor

 

Denise Jacobsen works in the Monroe Parks Department.

But six hours out of every day, she isn’t working on parks business. Rather, she’s reading old emails. Tens thousands of them. And she just learned she’ll soon have to read more than 100,000 more.

Last week, the mayor of Monroe made the council aware that a problem confronting many cities around the state has become serious in Monroe; that of how to comply with large public records requests. So he suggested that, in order to allow people like Jacobsen in the shorthanded city hall to get their own work done, the city hire a fulltime city clerk to handle such requests.

And he suggested that in order to fund the position, the city might go ask property tax payers to volunteer another $12.50 annually, on average, perhaps early next year.

 

Open records laws

 

In the state of Washington, citizens have the right to see all the records related to official business, including phone records, emails, employment contracts and memos, with certain exceptions.

These exceptions include records such as information about crime victims, personal health information, home address information about employees, some communications involving legal proceedings, and certain matters related to real estate.

Public records include communication from city officials and employees and other people made on personal communications devices, too. For example, if a planning commissioner discusses a rezone application with a friend via text message from a personal iPhone, that commissioner is legally bound to turn over all those text messages, should a citizen request them.

The laws have been invaluable for journalists and for citizen watchdogs.

But occasionally, they are disastrous for cities.

 

Cost of compliance

 

The city of Gold Bar has discussed bankruptcy and disincorporation this year, and is now running a $100,000 levy in an effort to help the city deal with the cost of running the city, while responding to a blizzard of public records requests that have required one person on the six-person city staff to work fulltime to address them.

When a massive request comes to a city, all people with relevant records have a limited amount of time to turn them over. Then someone with a reasonably good legal understanding of what is okay to give out and what should be withheld has to review each document.

Some are redacted, that is, certain things are crossed out before the document is released. Others are withheld entirely. Then the city’s attorney has to take a second look at all the withheld records in order to verify that they should be protected. Along with the records that are given out, the city has to provide a list of the records that were held back, along with an explanation.

If someone suspects the city of improperly holding some records back or redacting some improperly, that person can request an in camera review, in which a third party looks over the records that were withheld and decides whether the city broke the law.

If the city is found to be in the wrong, whether intentionally or by mistake, the city can lose a lot of money over it.

In fact, that is a lesson Monroe learned in 2009 when citizen Meredith Mechling won a suit against Monroe for failing to release all the emails she’d requested between the city and its attorney. The city had to pay her $157,394, and spent another $76,000 on legal fees in the five-year dispute.

Monroe is not alone in learning that lesson the hard way. The town of Mesa, Wash. currently faces bankruptcy as the result of mishandled public records requests, and Washington’s Mason County lost $150,000 in fines after it was found that a man’s emails requesting public records had been designated spam.

Public records laws are becoming increasingly controversial. While they are very important in keeping corruption from taking root, mayor Joe Beavers of Gold Bar is lobbying for rules that would make it harder for anyone to use the laws to try to harm a city.

“Unfortunately, in some cases, government staffers simply don’t take the public records act seriously. In others, individuals have learned how to use the public records act as a weapon to punish government,” said Washington Attorney General Rob McKenna on his website. “They’ve learned some government staffers aren’t always sure how to handle particular records requests and they capitalize on their mistakes.”

He is suggesting a board be created to resolve disputes in a cost-effective and timely way.

 

Monroe putting in hundreds of hours

 

Until recently, the city of Monroe wasn’t getting an inordinate number of public requests. In 2010, the city got 153 requests for public records. Most were for single documents, such as a newspaper request for a copy of a business license, or a request for an old marriage certificate.

In all, in 2010, city staff spent 151 hours on satisfying those requests.

But in 2011, there was a dramatic increase in hours spent on compliance. There were 198 requests and a handful were vast in scope.

Anne Block, the Gold Bar attorney who has initiated most of the public records requests in Gold Bar, and her boyfriend, Noel Fredricks, put in a pair of requests for all email communication and documents sent to or received by Denise Jacobsen in a 13-month period. It took city staff 153 hours over the course of three months to finish providing the records.

Another large request was from Monroe resident Dianne Elliott, who is working to get Walmart to conform more closely to the city’s design standards for the area. She requested records pertaining to several businesses, including Lowe’s, Home Depot, North Kelsey, Walmart developer Sabey, Walmart and Two Hoods LLC.

That took staff 250 hours over the course of a year.

In all, the city spent 734 hours on public records requests in 2011, equivalent to one person working full time for four and half months.

This year, to date, there have been at least 117 requests, most of them rather minor.

But there have been several large ones. Citizens for Sustainable Government requested all information related to developer Dave Remlinger’s communication with Monroe Economic Development Director Jeff Sax and Mayor Robert Zimmerman going back to when each began their current roles with the city.

As of Oct. 30, city staff have reviewed half of about 50,000 emails related to that request, which has taken 74 hours so far.

Lowell Anderson, an opponent of efforts to rezone east Monroe, has requested every document related to that east Monroe property to which former city attorney Phil Olbrechts, recently appointed as hearing examiner for Monroe, was party during his entire tenure with the city.

Olbrechts was with the city for eight years, and the east Monroe property came before the city several times. So that request will involve potentially more than 100,000 records.

Anderson said that the records will give him a way to protect himself and his neighbors should the matter of the east Monroe property come before the council yet again.

“The city fired the hearing examiner that gave us the ruling (against the rezone), then they hired Mr. Olbrechts, who was the city attorney for many years. As long as this group is still in power they will try to figure out a way to rezone the property,” he said. “The reason for the request is to disqualify him as hearing examiner when they try to bring it back. I’m protecting myself and our community.”

But Jeff Sax said he believes some people are misusing the system.

Zimmerman agrees.

“I think the public-at-large deserves to understand what the other citizens of Monroe are costing them,” he said.

Zimmerman said that he fears a trend.

“My fear is that these kinds of requests continue to come in and get broader and drain the city’s resources,” he said. “And heaven forbid that unintentionally we miss something and we are accused of not fulfilling the law and are subject to a lawsuit.”

 

City clerk position could solve problem

 

Although Sax is angered by public records requests that he believes are political attacks, he also said that many public requests are perfectly reasonable.

He also said he strongly believes that providing those records is a duty and function of government. The problem is, it’s an expensive service to provide.

Typically, the job falls to a town’s city clerk. But that position was eliminated during staff cuts in recent years.

Because the cost of error is so high and the information in question often so sensitive, it takes a qualified person to do the job, said Zimmerman

According to city administrator Gene Brazel, it would cost about $55,000 in salary and $29,000 in benefits to hire the right person, for a total of about $84,000 annually. That person would do more than just records requests, but would be the primary person to handle them.

In order to pay for that, the city would either need to cut staff somewhere else or increase revenue.

The city could raise the taxes on property owners without a vote; the city has turned down its annual 1 percent increase several times, and that is now “banked capacity,” meaning the city can still impose the taxes at some point.

Zimmerman said he would veto such a decision if the council voted for it. Instead, he said, the city could use its contingency fund to meet this year’s demands. But that is not a sustainable solution, he said.

“The more permanent option is to raise funds by reducing staff by the equivalent dollars, or raising taxes,” he said. “I’d like to see the voters approve that for two reasons. I want them to know in great detail why a tax increase is needed. And I want them to know that it’s because of these types of public records requests. I want them to know their neighbors are costing them a 4.5 percent property tax increase.”