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).
