There's a public records debate going on in Olympia that raises some interesting questions about the limits of open government.

State Attorney General Rob McKenna, who's built a reputation as a defender of open government, is asking for an exception to the public disclosure law when handling requests from inmates. He says a handful of inmates are abusing the law and wasting money and "terrorizing" with frivolous records requests. "Prison inmates developed a cottage industry, filing multiple, complicated Public Records Act requests with the hope state government will make a mistake so they can sue for a windfall," he wrote. "This abuse threatens timely access to government information for all legitimate requestors and devours tax dollars in the process.

He took the unusual request of sending a letter appealing for support from the news media, normally an absolutist bunch when it comes to public records. Here's
his letter, followed by a story by AP legal writer Gene Johnson looking at the issue. Read on and let us know what you think.

Dear friends,

A few state prisoners are jeopardizing legitimate public records requests, extracting a hundreds of thousands of dollars a year from our depleted state budget while terrorizing hardworking public employees. This urgent problem demands a bipartisan solution—and that’s why I’ve proposed new legislation to address it.

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Since I took office, we’ve made significant progress in the fight for open government. My office drafted and passed legislation to strengthen and clarify the public records act in response to the Hangartner decision, which threatened to reduce access to information. We created an Open Government Ombudsman to oversee the public’s right to information, requested the Sunshine Committee to review exemptions to the Public Records Act and pushed hard to require the audio-taping of key meetings of local government bodies (albeit unsuccessfully). This session, I’m working to require open government training for all government officials and to develop model rules for the Open Public Meetings act.

Unfortunately, over that same time period, prison inmates developed a cottage industry, filing multiple, complicated Public Records Act requests with the hope state government will make a mistake so they can sue for a windfall. This abuse threatens timely access to government information for all legitimate requestors and devours tax dollars in the process.

· As of September 2008, inmate public records lawsuits accounted for 78 percent of all public records lawsuits filed against the state. At that time, the Attorney General’s Office was defending 68 public records matters involving inmates. Approximately 50 percent of the PRA lawsuits the AGO’s Corrections Division is defending were generated by six inmates.

· The number of new inmate public records lawsuits more than doubled between 2007 and 2008. During the current biennium alone, my office’s work to defend against these lawsuits has cost state taxpayers roughly $500,000.

· Offender requests accounted for 73 percent of all public records requests DOC received in 2007. That year, DOC staff spent approximately 12,500 hours responding to offender public records requests, at a cost to taxpayers of more than $250,000 (the equivalent of more than six full-time state workers).

· During the first three quarters of 2008, DOC received more than 6,000 offender requests, roughly double the number received during the same period in 2007. DOC staff spent approximately 11,580 hours responding to these requests, many of which remain pending, at a cost to taxpayers of more than $237,600.

· DOC has one public records staff person working full time on the requests of one inmate who has made more than 800 requests.

Balancing the need for legitimate access to public records against the ease with which inmates are abusing the Public Records Act, my office has requested legislation to allow respondents to request an injunction and prove to a judge an inmate’s records request is intended to harass or cause harm. The legislation also gives courts authority to enjoin all or any part of the request and to retain jurisdiction for future requests by the same requestor.

Because of my strong commitment to open government, we narrowly crafted this legislation (HB 1181 /SB 5130 ) to address the specific problems we are trying to alleviate. My office has worked with Allied Daily Newspapers to fine-tune sections to ease concerns. At the Senate hearing on Jan. 29, they joined a coalition testifying in support of our bill.

Our bills create high standard for governments seeking to enjoin harassing requests. Legitimate inmate requests for information regarding their cases, medical treatment or various other issues will continue to be filled. Our legislation is very narrowly tailored to address a limited number of harassing requestors who are using the PRA improperly.

Over the years, I’ve demonstrated my dedication to transparency and accessibility in government. I did not arrive easily at the decision to seek a legislative solution to this untenable problem. Washington faces one of the worst economic situations in recent history and state employees are dealing with heavier workloads and potential layoffs. In a session of difficult budget decisions, we can save hundreds of thousands of dollars a biennium by simply refusing accommodate the threatening and harassing abuse of the state public records act by a few prison inmates.

Please contact my office if you have any questions or concerns about these bills and I look forward to continuing to work with you to improve access to government in the future.

Sincerely,

Rob McKenna
ATTORNEY GENERAL

ated Press

An entrepreneurial spirit struck Allan Parmelee last fall as he sat in a Washington state prison, serving 17 years for bombing the cars of two attorneys.
He wrote a letter to his brother — who’s serving 11 years in Michigan for child pornography — and proposed a business venture: The pair could make a killing collecting fines from government agencies around the country that take too long to respond to their burdensome requests for public records.

That abusive attitude toward public records is nothing new for Parmelee and a handful of other prisoners in Washington state who have used the Public Records Act to annoy, harass and simply get back at the people who put them and keep them behind bars. But the problem has worsened dramatically in the last few years, many lawmakers say, and they’re ready to stop it by allowing judges to restrict how much access inmates have to public records.

Department of Corrections officials have been pushing the idea for at least a decade, but Parmelee has given their cause a new poster child this time around, with his hundreds of creepy requests for photos, surveillance video or personnel files on judges, prosecutors, prison guards and others he’s encountered in his legal odyssey.

The House and Senate are both expected to pass bills that would permit agencies or public employees who are the target of records requests from inmates to bring those requests to a superior court judge. The judge could strike the requests upon finding they are intended to harass or intimidate, or that the disclosure of the records would jeopardize security. The judge could also require any future requests made by the prisoner to be approved by the court.

The Department of Corrections and the state lawyers who handle its public records litigation say the measure would dramatically cut the amount of time they spend on frivolous or intimidating requests. Last year, the department received more than 11,000 public records requests, and 8,000 of those came from offenders — a 64 percent jump from 2007.

The majority of those requests are legitimate, the department says — inmates seeking records about their cases, for example. But the agency points to a few prisoners it considers abusive, and Parmelee tops the list.

The department’s workers have logged nearly 4,900 hours responding to Parmelee’s 812 public records requests, which have sought photos and personnel files of the agency’s staff, among other things — some of which he’s entitled to. Parmelee has filed more than 700 requests in the last two years, the department says.

He’s also won thousands of dollars in penalties in cases where the agency fought his requests, but the state has taken steps to apply those fines to his legal obligations.

“These requests carry with them the implicit threat — sometimes the explicit threat — that this offender will do everything he can to use this information to find out where these public employees live and to undermine their sense of security and safety in their homes,” Senior Assistant Attorney General Tim Lang told a Senate committee during a hearing on the legislation.

Lang’s boss, Attorney General Rob McKenna, is a noted advocate of open government. He requested this year’s legislation after Parmelee sought personal information about lawyers in the AG’s office.

“Everybody would agree that some felon who is pursuing an appeal to their case should have access to the records pertinent to their case,” said Sen. Mike Carrell, a Lakewood Republican who sponsored the measure. “The concern is not that they’re trying to mine information about their case, but whether this is an open pit mine or a tunnel.”

While it appears to enjoy bipartisan support — and even has the backing of the state’s newspaper industry — the approach causes heartburn in other quarters.
Seattle open-government lawyer Michele Earl-Hubbard agrees that Parmelee’s requests seem badly motivated, but she also says it’s dangerous to let the government decide what information is important for inmates to have.

Parmelee’s attorney, Michael Kahrs, said inmates have a vested interest in being able to gather information about how the state operates. He worries about a section of the Senate bill that says if a public agency’s request for an injunction is denied by a judge, or overturned on appeal, the agency does not have to pay any fines to inmates for delays in turning over the documents.
“If the DOC is not penalized, then where’s the downside for the department to basically obstruct all prisoner requests?” Kahrs asked. “And how are prisoners going to find an attorney to represent them if there’s no possibility of getting any recoupment of penalties?”

That possibility also troubles Paul Wright, a former Washington prison inmate and founding editor of Prison Legal News, a publication devoted to the rights of prisoners. After a six-year legal fight, Wright won a $541,000 settlement from the DOC in 2007 after the agency improperly redacted information on documents he sought for an expose on prison medical errors and discipline against prison doctors.

“They pretend it’s the Allan Parmelees of the world driving this, when really they just don’t want to give anything up,” Wright said. “It’s about ensuring a nonpublic, non-transparent agency remains so.”

The Washington Coalition for Open Government has its concerns that the measure could be a slippery slope that could lead to anyone, not just prisoners, having restricted access to public records, said the group’s president, Toby Nixon. But, he said, the organization will go along with the bill for lack of any better ideas on how to block abusive requests.

“If we don’t give the DOC and possibly other agencies the ability to deal with Allan Parmelee, it ends up poisoning the situation for everyone else,” Nixon said.