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Eyman, Reed Square Off on Public Records

September 16th, 2009 by Steven Gardner

Washington’s initiative guy, Tim Eyman, sent out a press release earlier today stating that the Washington Secretary of State Sam Reed has been “perpetuating a fraud” when it comes to revealing names on petitions.

Eyman said Reed’s reaction to a recent court ruling was an “misinformation campaign” that “whipped into a frenzy our state’s newspaper editorial boards, journalists, columnists, the gay rights community, the faith community, and regular citizens over the past few months during this fight over Referendum 71.”

That referendum would have voters decide whether domestic partners should enjoy all the legal rights married people do, without calling their partnerships marriage.

Reed, through his Deputy Communications Director Brian Zylstra, fired back without using words like “misinformation,” though he did use the word “truncated” with some effect.

Eyman is arguing state law has not been to have all the information on petitions made subject to open records law. He wrote that between 1972 and 2000 names were considered personal information and not subject to disclosure. He further stated Reed didn’t change the policy until 2006, when opponents of Eyman’s I-917 made a request for the records, the state made copies onto a compact disc and handed them over. Eyman says Reed broke the law in doing so.

That’s not so, says Zylstra. Personal information was not subject to disclosure, he argues, between 1972 (when voters supported the Public Records Act) and 1998, when the state Attorney General (that would be Chris Gregoire) said all information should be.

However, the state was charging 10 cents a copy, so “it could cost an individual or group thousands of dollars to pay for a paper copy of the petition,” Zylstra wrote. So until 2006, no one asked. That was when the state started making those copies available on CD.

“The policy shift on petition sheets in the ‘90s wasn’t made to harm initiative or referendum sponsors but to comply with the Public Records Act. As our office has said before, initiatives and referenda are attempts to change state law. Such attempts shouldn’t be hidden from public view. That being the case, when someone signs a petition sheet, they are playing a critical role in trying to change state law, so the information on these sheets should be made public if requested,” wrote Zylstra.

Then, in response to Eyman’s “truncated” section of state law, Reed’s office provided larger context.

You can read both e-mails after the jump.

Here’s Eyman’s lob:

RE: BOMBSHELL: SECRETARY OF STATE HAS BEEN PERPETRATING A FRAUD (RE: PETITIONS AND THE PUBLIC RECORDS ACT)

Secretary of State Sam Reed and officials and lawyers in his office have been saying for months that signers’ names, signatures, and home addresses on initiative and referendum petitions have, throughout our state’s history, been made available to the public and that U.S. District Court Judge Benjamin Settle’s recent ruling overturns that longstanding practice and law.

Turns out that’s not true.

From 1912, when the ballot measure process was first enacted, until 1972, initiative and referendum petitions were not subject to review by anyone except the courts.

In 1972, the voters approved Initiative 276, the Public Records Act. The Secretary of State and his surrogates have been saying for months that that law made petitions “government documents” subject to review by everyone.

Turns out that’s not true either.

The Secretary of State’s misinformation campaign has whipped into a frenzy our state’s newspaper editorial boards, journalists, columnists, the gay rights community, the faith community, and regular citizens over the past few months during this fight over Referendum 71.

The people have not been well-served.

According to Don Whiting, a very well-respected, now retired official with the Secretary of State’s office from 1968 through 2000, the truth is much different than we’ve all been led to believe.

As pointed out by Mr. Whiting, the Public Records Act made petitions “government documents,” however, the PRA specifically included this statute (RCW 42.56.210) that is still the law and it reads: The exemptions of this chapter are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought.

Citizens’ names, signatures, and home addresses on initiative and referendum petitions are clearly “personal information” and as such, the Secretary of State from 1972 through 2000, following the clear mandate of RCW 42.56.210, refused to violate the personal privacy of citizens who signed initiative and referendum petitions. During that time, the Secretary of State’s policy was to tell petition “requesters” that they could get the petitions but that all the personal information on them would be blacked out or redacted unless they got a court order (the statute specifically allows people to go to court to show cause why the personal information should not be removed).

On December 31, 2000, Secretary of State Ralph Munro retired as did Don Whiting.

During Sam Reed’s first six years as Secretary of State, that policy remained the same.

That changed in 2006.

In January of 2006, Jack Fagan, Mike Fagan, and I co-sponsored Initiative 917, “Save Our $30 Tabs.” It was our third attempt to require $30 car tabs for everyone.

Very powerful opponents were arrayed against it.

What followed were several challenges because of the Secretary of State.

In 2005, the Legislature passed House Bill 1222 which required the printing of a declaration on the back of petitions. During the debate on the bill, we were assured by one of its sponsors, Rep. Toby Nixon, that it had to be printed on the back of the petition but didn’t need to be filled out by the circulator. In January, 2006, before we printed our petitions, we confirmed that fact with the Secretary of State. So we printed it on the back of our petitions BUT NOT VERY PROMINENTLY and mailed them out to tens of thousands of supporters on our database.

Two weeks later, after our signature drive had began and was moving full steam ahead, we were notified by the Secretary of State that they had changed their position and that now they said it was required for the circulator to include their name on the back of the petition AND IF IT WASN’T THERE, THE SIGNATURES ON THE FRONT WOULD NOT BE COUNTED.

This forced us to start over, ‘recall’ our old petitions and throw away tens of thousands of not-yet-used petitions, and reprint them with A MUCH MORE PROMINENT request for the circulator’s name on the back, and we had to resend them to our tens of thousands of supporters. This was expensive, but more significantly, it was hugely disruptive.

Toby Nixon, strongly dissatisfied with the Secretary of State’s changed position, asked for and received an Attorney General’s opinion in May of that year that reversed the Secretary of State’s twisted interpretation, and said that valid voter signatures would count, regardless of whether the back of the petitions were filled out.

We turned in our petitions in July.

Three days later, we were notified that instead of our signature count of 300,353, the Secretary of State had determined that we had turned in only 266,006.

A full signature verification check was initiated because the smaller number didn’t allow for statistical sampling.

On September 19, 2006, opponents of I-917 made a public records request for the I-917 petitions.

The Secretary of State scanned all the petitions with citizen signers’ names, signatures, and home addresses unredacted, put them on CDs, and turned them over to the opponents of I-917.

THE SECRETARY OF STATE VIOLATED THE LAW (RCW 42.56.210) WHEN THEY DID THAT, OVERTURNING 33 YEARS OF SECRETARY OF STATE POLICY UNDER I-276. THIS WAS THE FIRST TIME IN WASHINGTON STATE’S HISTORY WITH BALLOT MEASURES — 94 YEARS — THAT THE PERSONAL, PRIVATE INFORMATION OF CITIZENS WHO SIGNED A PETITION WAS NOT PROTECTED BY THE SECRETARY OF STATE, DESPITE A LAW MANDATING SUCH PROTECTION.

The Secretary of State’s decision to violate the law to help opponents of I-917 has now led to the likely overturning of the Public Records Act.

The Secretary of State is forcing taxpayers to spend a tremendous amount of time and money to clean up a mess that they created.

The Secretary of State has perpetrated a fraud upon the people and the press and the courts by repeatedly saying that citizens’ names, signatures, and addresses on petitions have always been made public.

That’s clearly not true.

So please, would everyone please stop perpetuating the myth that this is a century-old policy and law? Please, would the newspaper editorial boards back off on the chest-thumping editorials demanding citizens’ names, signatures, and home addresses be released, despite the existence of a law that requires citizens’ personal information be redacted? Citizens have had a right to privacy, and their personal information has been protected, from 1912 to 2006. Please, let’s not allow the Secretary of State to get away with whipping us into a frenzy about a policy that they manufactured just 3 years ago.

Again, the people have not been well-served.

Here’s the response from Reed’s office:

Greetings – Earlier on Wednesday, initiative king Tim Eyman distributed an e-mail to his supporters and the media in which he criticized Secretary of State Sam Reed and officials in our office regarding our office’s history on our policy regarding the release of initiative or referendum petition sheets.

After Washington voters passed Initiative 276 in 1972 that created the Public Records Act, various Secretary of State administrations took the position, from 1973 to 1998, that the personal information on petition sheets were NOT subject to disclosure. However, based on advice by the Attorney General’s Office in the 1990s, the Office of Secretary of State changed its policy to consider all information subject to disclosure upon request.

A fee of 10 cents per sheet was charged for such requests. Considering the extremely large volume of petition sheets for an initiative, it could cost an individual or group thousands of dollars to pay for a paper copy of the petition. As a result, from 1998 to 2006 nobody followed through on a public records request for such documents because it was too expensive. That changed in 2006 when our office made these documents available on CD or DVD for a modest fee. Thanks to the digital age, requesting these documents became faster and much cheaper.

Throughout Secretary Reed’s tenure in this office and in the three years leading up to it, our office’s position has been that the names and addresses on initiative or referendum petition sheets are public records.

The policy shift on petition sheets in the ‘90s wasn’t made to harm initiative or referendum sponsors but to comply with the Public Records Act. As our office has said before, initiatives and referenda are attempts to change state law. Such attempts shouldn’t be hidden from public view. That being the case, when someone signs a petition sheet, they are playing a critical role in trying to change state law, so the information on these sheets should be made public if requested.
Since there is a truncated reference to a particular RCW in Mr. Eyman’s e-mail, we want to provide the full text of the relevant law:

RCW 42.56.050:
A person’s “right to privacy,” “right of privacy,” “privacy,” or “personal privacy,” as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. The provisions of this chapter dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public’s right to inspect, examine, or copy public records.

RCW 42.56.210
(1) Except for information described in RCW 42.56.230 (3)(a) and confidential income data exempted from public inspection pursuant to RCW 84.40.020 , the exemptions of this chapter are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought. No exemption may be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons.
(2) Inspection or copying of any specific records exempt under the provisions of this chapter may be permitted if the superior court in the county in which the record is maintained finds, after a hearing with notice thereof to every person in interest and the agency, that the exemption of such records is clearly unnecessary to protect any individual’s right of privacy or any vital governmental function.
(3) Agency responses refusing, in whole or in part, inspection of any public record shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.

RCW 42.56.230
The following personal information is exempt from public inspection and copying under this chapter:
(1) Personal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients;
(2) Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy;
(3) Information required of any taxpayer in connection with the assessment or collection of any tax if the disclosure of the information to other persons would (a) be prohibited to such persons by RCW 84.08.210 , 82.32.330 , 84.40.020 , or 84.40.340 or (b) violate the taxpayer’s right to privacy or result in unfair competitive disadvantage to the taxpayer;
(4) Credit card numbers, debit card numbers, electronic check numbers, card expiration dates, or bank or other financial account numbers, except when disclosure is expressly required by or governed by other law; and
(5) Documents and related materials and scanned images of documents and related materials used to prove identity, age, residential address, social security number, or other personal information required to apply for a driver’s license or identicard.

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One Response to “Eyman, Reed Square Off on Public Records”

  1. Toby Nixon Says:

    I sent the following response to Tim Eyman, earlier this evening:

    Tim,

    Your analysis of RCW 42.56.210(1) is incorrect; you are completely misreading it. RCW 42.56.210(1) is NOT a blanket exemption from disclosure for all records “the disclosure of which would violate personal privacy “. RCW 42.56.210(1) says that if some of the content of a record is exempt from disclosure, then the agency cannot withhold the entire record but must redact only the exempt portion. This section does NOT create any PRA exemption, but declares situations in which statutory exemptions DO NOT APPLY.

    Even if RCW 42.56.210(1) did state an exemption (which it does not), it would not apply to initiative and referendum petitions. Every reference to “right of privacy,” “privacy,” or “personal privacy” in the Public Records Act is subject to the limitations in RCW 42.56 050. That section contains a two-pronged test; both parts must be met in order for a record to be exempt on the basis of a “privacy” exemption. It says that to be exempt, the “private” information must be “highly offensive to a reasonable person” AND must also be “not of legitimate concern to the public”. In the case of initiative and referendum petitions, this two-pronged test is not met. Nothing on a petition is “highly offensive to a reasonable person”, and the content of petitions, knowing who signed them, and the ability to verify the accuracy of the Secretary of State processes, are most definitely “of legitimate concern to the public”.

    In addition, RCW 42.56.050 also explicitly says that new “privacy” exemptions cannot be created out of thin air, but that they must be explicitly stated in statute: “The provisions of this chapter dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public’s right to inspect, examine, or copy public records.” There is no generic “right to privacy” in the Public Records Act. Those exemptions that do exist in the law must be narrowly construed (RCW 42.56.030). There is no specific exemption anywhere in the law that states that initiative and referendum petitions are exempt from disclosure, for privacy reasons or otherwise. The petitions therefore must be available for public inspection and copying. If the proponents of R-71 or anyone else want to change that, they should go to the legislature or run an initiative to get the law changed.

    The Secretary of State has been following the law with regard to these records. Your accusation that the Secretary of State “violated the law” by releasing the I-917 petitions, and that he is “perpetrating a fraud” today, are false and should be retracted.

    I will also say this. If the proponents of R-71 sincerely believed that an exemption in the Public Records Act applied to the referendum petitions, there would have been no need for them to go to federal court and sue to have their release blocked on the basis of federal constitutional issues. If the Secretary of State said they intended to release copies of the petitions despite the existence or possible existence of an exemption, the proponents – or any person who signed the petition and was therefore “named in the record” – could have gone to Thurston County Superior Court or in their county of residence and sought to enjoin the release, as permitted under RCW 42.56.540. They could still do that today. Why have they not done so if they sincerely believe that an exemption applies?

    Best regards,

    Toby Nixon
    President, Washington Coalition for Open Government

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