More on Port Orchard’s public records

With Christmas coming up in two days, how many folks are thinking about sewers? Or tap water?

If you have guests coming for the holiday, perhaps you’re hoping your pipes will handle the pressure — those extra showers and dishwasher cycles, those extra loads of laundry and loads of other sorts.

But most of the time, be honest, who really thinks about sewer and water, at least until you get your bill.

Speaking of sewer and water bills, Port Orchard’s rates for these utilities could double over the next five years, if the City Council takes the recommendation of a utilities finance expert, as we reported in Monday’s Kitsap Sun.

The city’s utility committee has been working since May with consultant Katy Isaksen to calculate what it would take to bridge the “gap” between revenue from ratepayers and the actual cost to provide sewer and water services. The city also needs to do some major upgrades to both systems, according to the public works department. Those costs are built into Isaksen’s recommended scenario under which the average sewer-water customer would see their bill rise from about $100 in 2015 to more than $230 in 2020.

Notice how the formal presentation on Isaksen’s recommendation came after months of looking at the details and revising estimates in committee meetings. It’s no stretch to say committee meetings are where the heavy lifting of city government gets done. And the public is always welcome to attend.

One city resident who does pay close attention to utilities is Elissa Whittleton. She tries to attend most utility committee meetings and, in a Facebook post a couple of weeks ago she complained about a new (as of October) disclaimer at the bottom of the agenda stating,

“PLEASE NOTE: UTILITY COMMITTEE PACKET MATERIALS PROVIDED TO COMMITTEE MEMBERS AND CITY STAFF ONLY. NOT TO BE DISTRIBUTED TO GENERAL PUBLIC UNLESS OBTAINED THROUGH PUBLIC RECORDS REQUEST PROCEDURE.”

I, like Elissa, did a “Say what?” about this, since materials for city council meetings are readily provided through links on the online agenda and by request as hard copy.

City Clerk Brandy Rinearson had an explanation. The bottom line is, you can get the materials (with a formal request), but some materials (of the kind most likely to be distributed at committee meetings) are exempted from disclosure, and like all public records, committee materials are subject to redaction.

What does all this mean?

First of all, Rinearson said, committee meetings are different from regular council meetings in that they don’t constitute a quorum of council members. Under the state’s Open Public Meetings Act, any meeting of elected officials where there is a quorum (down to your tiniest water district) must be publicly noticed and materials cited at the meeting must be readily available to the public.

Why does this matter?

While committee members can hammer out policy and develop recommendations on actions the council might take at one of its meetings, they can’t take formal action. The council, on the other hand, can act on the basis of information in reports and other documents complied into a “council packet” that is often more than 100 pages long.

Don’t be daunted by that. If you are interested in a particular agenda item — as I was by the consultant’s report on the sewer and water “gap” — you can simply download it from the city’s website or ask for that part of the packet.

I had always assumed one could just as easily get materials from committee meeting packets and until recently they could.

What changed all that?

Starting around late summer, early fall, the utility committee was knee deep in discussion of stormwater rates. The owners of a B&B, who had concerns about how the proposed rate assessment would affect them, made a request for committee materials. Rinearson, as city clerk, was pulled in on the request, which included the couple’s earlier stormwater utility bills.

Under state public records law, private information like addresses, phone numbers, account numbers, social security numbers and the like must be redacted (whited out so no one can read them). Another type of information requiring redaction would be an attorney’s advice to the city, protected under client-attorney privilege.

So Rinearson realized that, even though the couple was requesting their own utility bill as part of the committee packet, technically, their privacy rights would be violated under public records laws. Rinearson told public works and other staff answering to the committee to direct any requests for packets through her as formal public records requests.

Public records is hot topic in the city of Port Orchard, what with the city of Bainbridge Island’s recent $500,00 settlement of a public records lawsuit.

Let’s now clarify that a formal records request to the city of Port Orchard can come in pretty much any form: via email, in writing and via a phone call to the city clerk’s office.

But wait, there’s more.

Some “preliminary materials” (discussed at any kind of meeting) are exempt from disclosure under the OPM, Brandy said, citing RCW 42.56.280. After reading the law and talking with Brandy, I’d describe these as documents descriptive of works in progress. But note the exemption for any that are directly linked to a formal action.

Exempt documents include, “Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended are exempt under this chapter, except that a specific record is not exempt when publicly cited by an agency in connection with any agency action.”

As an example of preliminary documents, note that the estimated increase in sewer rates was much higher at first, when Isaksen included all capital projects on the city’s list. Committee members asked her to revise the estimates factoring in just the most pressing sewer and water projects.

I asked Rinearson if the RCW isn’t subject to interpretation. It is, she said. In her training as the public records official for the city, Rinearson learned about a four-part test — based on a case reviewed by the Washington State Court of Appeals — which she and other city officials now use to weigh whether a record is subject to disclosure.

Records that meet the four-part test could be withheld, according to Rinearson. The test points are:
One — The records contain pre-decision opinions or recommendations expressed as part of the deliberative process.
Two — Disclosure would be harmful to the deliberative process or consultative function of the process.
Three — Disclosure would interfere with the flow of recommendations, observations, and opinions.
Four — The records reflect policy recommendations and opinions and are not simply the raw factual data underlying a decision.

Two and three seem subjective to me, which I pointed out to Rinearson. She affirmed that her department’s decision to withhold documents is always open to a legal challenge.

According to Rinearson, more than 95 percent of records requested are readily available without redaction.

Now once more with feeling, Port Orchard’s committee materials are available are available with a records request to the city clerk, cityclerk@cityofportorchard.us, or by calling (360) 876-4407.

If you actually made it all the way through this post, congratulations; email me, chenry@kitsapsun.com, and I will add you to my unofficial list of local government nerds.

Share on Facebook