I assume that I am one of many who is appalled at the spectacle of Eric Hood’s 100 lawsuits seeking audit records of small rural school districts and other local government agencies. As your …
I assume that I am one of many who is appalled at the spectacle of Eric Hood’s 100 lawsuits seeking audit records of small rural school districts and other local government agencies. As your article demonstrated, Hood has no interest in actually obtaining these records. He only seeks to bully these entities into paying him “attorney fees” — though he has not actually hired attorneys — in order to settle his specious claims. This has netted him over $800,000 that presumably could be better used for the local functions of school districts and other agencies.
What’s going on here? How is such egregious blackmail not only tolerated, but performed under the observation of state courts?
The answer lies in Washington’s Public Records Act. In order to assure that public agencies do not frustrate legitimate citizen requests for records, the act makes agencies subject to awards of “reasonable attorney fees” to citizens who are required to get a court order when an agency fails to provide requested records. A good law, but subject to abuse by a serial litigant like Hood. Small local agencies are faced with either paying substantial legal costs to defend, or pay a lesser ransom amount to highwaymen such as Hood.
I am a retired attorney who brought a leading open meetings lawsuit in Alaska. I have a strong interest in open government, so I am outraged by this abuse of open records laws. I suggest two remedies.
First, Washington’s records law should be revised to authorize not just “any person” to demand audit records, but that this standing be limited to persons with a demonstrable financial interest, e.g. a local taxpayer, or investigative interest, e.g., a newspaper.
Second, the statute should authorize an award of attorney fees to an agency forced to defend against bad faith litigation, which Hood’s plainly is.
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_Every_ person has a "demonstrable financial interest", either directly or indirectly, in the records that are prepared, owned, used, or retained by any state or local agency. We all pay taxes, and we rely on public agencies to do their job of serving the public. Oversight is essential, and we the public have far too little power as it is.
Access to public records is already overly-restricted by the more than 500 exemptions in the Public Records Act. Special interests try to whittle away at the PRA every year, so constant vigilance is necessary. Check out the good work done by the Washington Coalition for Open Government at https://washingtoncog.org/
As for Mr. Hood, his actions give "requestors" a bad image, but lazy, low-information (or simply corrupt) agencies are themselves to blame for being targets of opportunity. If those agencies simply did the necessary training and paid attention to the Public Records Act's requirements, they would not be sued.
For example, if a request is not clear, the agency can - and should - require the requestor to clarify the request until the agency is certain that they know what is being asked for. Then, after conducting an "adequate search" (as defined in case law) and then producing the requested records, the agency will have a defensible position and any suit would likely be dismissed as frivolous, in which case the plaintiff would bear all of the legal costs.
The Leader also should document how much money Mr. Myers and other attorneys have extracted from agencies in "defending" them. NB: Mr. Myers lost the case of Belenski v Jefferson County in 2016, a case that ended up before the state supreme court, in which the county was found to have illegally hidden over 300 million public records.
Public Records Act
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.
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