by William Stimson
When the city of Spokane was fined $22,000 last week for failing to release documents under the Washington State Public Records Act, its attorney, Laurel Siddoway, was thrilled. She told the judge that as far as the city was concerned, there was no need for further hearings on the matter. The city was ready to write a check.
Siddoway was happy because the city of Spokane will walk away essentially unpunished for keeping River Park Square documents from citizens for seven years, from 1997 to 2003. This decision, taken together with a similar recent public records decision in Seattle (having to do with construction of the Seahawks' stadium) may be remembered as the one that signaled the collapse of the state's once strong tradition of public disclosure.
The Spokane case is particularly devastating because it would seem to be a textbook example of exactly what the Washington Public Records Act of 1972 was intended to prevent.
Citizens of Spokane found themselves involved in a financial obligation, but they had not been told many of the particulars. The original study for the parking garage was based upon secret assumptions. The Coopers & amp; Lybrand study that was presented as an endorsement of the deal actually contained a secret chapter. Citizens never knew of a crucial argument over the parking voucher system that would make or break the garage's fate.
Does that sound like "full access to information concerning the conduct of government on every level," as promised in the Public Records Act? What exactly can a public disclosure law mean if it does not require a public body to get such information into the hands of citizens?
To imagine what might have been, had the law been followed, consider just one of the hundreds of documents that were kept secret: In 1997, the city asked three professors of business at Gonzaga University to evaluate the federal loan the city was seeking on behalf of River Park Square developers. Professors Clarence Barnes, Kent Hickman and Carl Bozman issued their "Preliminary Confidential Draft" on Sept. 29, 1997. They were just this side of sarcastic in their description of the loan's terms.
In any loan, the key question is how would it be secured if the promised payments do not come through. The professors pointed out that in the River Park Square loan, the security, in case the mall failed, was ... the mall that had failed! The professors compared this with a man taking out a loan and promising his salary as collateral, the problem obviously being that if he didn't pay the loan it might be because he has lost his salary. "This loan," the report said, "is essentially uncollateralized."
Imagine for a moment that this interesting piece of analysis had been placed before the public, and that the professors had been invited to discuss their worries in a public hearing. It is safe to say the taxpayers would have demanded better terms. Public involvement almost certainly would have eliminated the "gun to the head" current council members complained of when they voted last December to pay $20 million to extricate the city from the financial quagmire of the mall, not to mention the nearly $10 million it spent litigating it before that. The city's reluctance to tell citizens what was going on likely cost taxpayers $30 million.
Judge Richard Schroeder did not see the matter in this light. He rebuked the city mildly with the $22,000 fine. He ruled that the city's secrets were either irrelevant to Connor's case, because if they happened, they happened before his first open records request was filed, or because they were due to innocent "negligence."
Negligence? Look at, for example, what it took to get that GU report to the public. When the report was first issued, in 1997, the public official who read it scattered exclamation points alongside the professor's criticisms and scribbled, "need to tell in public hearings," in a margin. Clearly, city officials knew these were important warnings. But there were no public hearings or warnings.
In 2000, reporter Tim Connor officially requested copies of all reports explaining the basis of River Park Square. As it was required by law to do, the city issued a memorandum calling upon all public officials to turn over copies of documents.
A year passed. Connor received hundreds of documents from the city. But he guessed from gaps and clues that some were missing, so he sued. City attorneys announced there was nothing left to disclose and tried hard to block "discovery," the ability to depose those who were involved.
Another year passed. Now it was time for Councilwoman Roberta Greene to be placed under oath and deposed about her knowledge of secret documents. To even Connor's surprise, she showed up with a box full of documents she decided, at this late date, belonged in the public record. In the box was the GU draft report -- six years after the original was written.
The Public Records Act is backed by the threat of fines for a reason. These are meant to punish violations and to set an example for public officials who would be tempted to hold back documents from the public.
The fine of $22,000 for six years of hidden documents will set an example, all right. The next time an official is inclined to keep records out of public discussion, he will ask counsel, "What's the worst that can happen if we don't?" The city attorney will now be able to point to Connor v. City of Spokane and reply, "Not much."
William Stimson, a frequent contributor to The Inlander, teaches media law at
Eastern Washington University.
Publication date: 2/17/04