National study gives Washington a big, fat "F" in easing access to government information

We got an "F"! How could we get an "F"?

Yes, us, Washington state. We got a failing grade for open government. How is that possible after all that our citizens, elected leaders, courts and media have done in the name of openness? An "F"! It was embarrassing last week when Washington was listed among the states whose freedom-of-information (FOI) laws need reform. No excuse that 37 other states got the same failing grade. We expect more from ourselves, don't we?

The assessment came from the Better Government Association and the National Freedom of Information Coalition, both independent government watchdog organizations. The BGA/NFOIC scorecard had five criteria for evaluating whether state laws have built-in mechanisms to help citizens gain access to government information.

Washington ranked 16th, with 9 of a possible 16 points. That 56 percent achievement got a letter grade of "F". No state got an "A" and only two states, Nebraska and New Jersey, got "B's".

"Freedom-of-information laws are only as good as the response mechanisms built into the laws themselves," the organizations said in releasing the data. "After all, if citizens can't take action to enforce their right of access shy of filing suit, what good are FOI laws? When it comes to responsiveness measures, not much good at all."

The organizations also said, "The tools available to citizens to enforce their rights under state FOI laws are, with rare exceptions, endemically weak."

Washington's laws failed on two of the five criteria — expedited review and sanctions.

"Expedited review means that a case's priority on a court's docket will be put in front of other matters because of time concerns. Without an expedited process, it may be months or years before an appeal is heard and resolved in a congested court docket.

"As a result, the enormous costs of a lengthy court battle may prevent a citizen from challenging a denial. Furthermore, lengthy court battles will render time-sensitive documents useless. Absent an expedited process, litigation may serve as [a] tool to stall the production of records until the records are no longer of use, or until the citizen simply gives up on the request."

States that don't provide for an expedited process in their public-record statute received a score of 0, and Washington got the goose egg.

The "sanctions" criterion was a test of whether the law levies penalties against state employees if a court finds they violated the law. "Without a sanctions provision, a public-records statute means very little. It is only when an agency is punished for breaking the law that the law will be followed," the report argued.

"States that do not specifically punish an agency for non-compliance with the statute received no points," and that's where the study placed Washington. Another goose egg.

The report contends states that do not specifically punish noncompliance "lack a serious commitment to the policy underlying an open-records act."

Washington's law gives courts the discretion to assess penalties, but that doesn't often happen. There isn't much incentive for a citizen to go to the trouble and expense to sue to get records, nor is there much disincentive for a state employee to withhold records.

States that provide for either criminal or civil sanctions in the event there is a violation of the law got one point. States that provide for both criminal and civil sanctions got two. States that provide for criminal and/or civil sanctions and increase those sanctions for multiple offenses got three. And states that allowed for termination of an employee who violates the statute got four points.

Of the latter group the report said, "These states provide for the individual employee who has violated the statute to be held directly responsible for his or her wrongful conduct. While fines may be paid out of the agency budget, this provision mandates direct accountability and is most likely to result in compliance."

Jay Stewart, executive director of the Better Government Association, put an interesting competitive spin on the state rankings: "The Freedom of Information Act is an incredibly important tool in helping citizens understand how their government works. Just as states compete amongst each other to be the best in education, business environment and tax policy, the states should compete to be the best in responding to citizens' requests for public information, information they pay for with their tax dollars."

That's a worthy incentive for Washington to undertake reforms, but avoiding an "F" should be incentive enough.

Inside The Times appears in the Sunday Seattle Times. If you have a comment on news coverage, write to Michael R. Fancher, P.O. Box 70, Seattle, WA 98111, call 206-464-3310 or send e-mail to mfancher@seattletimes.com. More columns at www.seattletimes.com/columnists