A recent story in the Kitsap Sun covers two public records lawsuits filed against Mason
County that resulted in $320,000 in penalties and court costs.
In one of the suits, e-mails from the person requesting information
were blocked as “spam,” sent to the county’s junk mailbox and
eventually purged from the system.
Mason County’s public records woes suggest that Port Orchard’s
inclination to err on the side of caution in its policy on e-mailed
public records requests is justified. PO in September enacted an
update to its public records ordinance, stating the city will no
longer accept e-mail requests. The city clerk, who is the
designated public records officer for the city, will still process
requests by e-mail; the change in the ordinance was meant to cover
the city in the event that one slipped through the cracks.
Since we’re back on the subject of Port Orchard’s public records
ordinance, let me divert a minute to say Mayor Lary Coppola panned
my story because he felt it unfairly portrayed
the city as being uncooperative, furtive and resistant to public
records requests. (You can see his comments at the bottom of the
story.)
Port Orchard accepts requests by phone, mail, fax and in person,
and many of their documents are available on the city’s Web site
(as well as videos of city council meetings). So the issue to me is
not one of transparency or good faith, both of which City Clerk
Patti Kirkpatrick and her assistant, Brandy Rinearson, display in
abundance.
That having been said, the point of the story still stands. By
technically refusing to accept e-mail requests (even while
processing them to the best of city staff’s ability) the city is
placing itself in a position of legal liability, said Tim Ford,
open government ombudsman for the state Attorney General’s
office.
The AG’s office does not police jurisdictions’ compliance with
public records laws. But individuals, companies or organizations
could potentially sue Port Orchard creating a financial liability,
even if the city were to prevail. (In Mason County’s case, the
Washington Counties Risk Pool defended both lawsuits and will pay
all but a $10,000 deductible per case.)
I called Tim Ford after my story ran to do a reality check. He
sympathized with public records officials, especially in small
jurisdictions, who often wear many hats.
“These are tough budget times,” said Ford. “It’s not easy for
cities to hire a separate person for public records requests. So
often they have the city clerk doing 100 different things.”
That scenario played against Mason County. The commissioner’s
clerk whose e-mail system saw the plaintiff’s request as junk later
said “she’d had no training” even though she was the designated
public records officer. The attorney representing the county
described the clerk as “someone very overly burdened in a county
without enough resources.”
Ford applauded Port Orchard for its intention to address all
forms of public records requests. That’s as it should be, he said.
In his opinion, however, the no-email ordinance will not provide
the city protection in the event an e-mail request falls through
the cracks and if the person who made that request decides to file
suit (see the case cited in my story). “If they have policy that
restricts or prohibits e-mail requests, they have a lot of
liability there, because you can’t treat requesters differently,”
said Ford.
That conclusion was seconded in the Mason County story by Monty
Cobb, Mason’s deputy prosecutor for civil matters, who said that
“while written requests are preferred, nothing restricts the use of
e-mail, the telephone, even ‘notes on the back of a napkin,’ he
said.”
For the record, there were other factors in the Mason County
suits besides the lost e-mail.
And a final point. Coppola, in his criticism of my story,
brought up an e-mail exchange he and I had in connection with the
story in which I had put the wrong address on an e-mail to him. I
eventually got the right address and Coppola responded promptly,
but his point was, what if that had been a public records request
and I had wanted to make a stink about it. The answer, according to
Ford, is that I wouldn’t have had a legal leg to stand on. While
the law puts the heavy burden on public officials to provide public
records, the burden is on the public to use proper addresses
(e-mail and other wise).