In Soter v. Cowles (the records case the state Supreme Court ruled on last week), the Spokane School District used the provision to sue The Spokesman-Review before the newspaper could sue the district. As we said in the editorial, the approach smacks of a strategic lawsuit against public participation.
But that’s not the only way public agencies are twisting RCW 42.56.540 to foil records requests. Toby Nixon, a former state legislator and president of the Washington Coalition for Open Government, explains:
In Soter, the agency actually filed a lawsuit to request that a court determine whether the records were exempt, basically anticipating that the requesters would file a lawsuit upon the agency denial. If the agency had "lost" that suit and the court found that the records had to be released, then presumably the requester’s attorney fees and court costs would still have to be paid by the agency, and also, presumably, the court would still apply the per diem penalties.
This isn’t the kind of "abuse" that we talk about in the WCOG agenda, since at least the agency *is* a party to the action and is on the hook for fees, costs, and penalties as a result. The "abuse" that we talk about in the agenda would have worked like this in the Soter case: when the paper filed the request, the school district wouldn’t have filed for an injunction itself. Instead, it would go to the employees who are named in the requested records, notify them of the request, and (quietly) invite them to go to court and file a suit against the district asking for the district to be enjoined from releasing the records. The district could then basically default on that lawsuit (not put up any defense), the injunction would be issued, and the records would not be released. The requester would not be a party to the lawsuit, and thus not able to receive fees, costs, or penalties.
THAT’s the kind of abuse we’re talking about. Department of Corrections does this all the time when inmates request records that name corrections officers – DOC gets the COs to file for an injunction and then puts up no defense. If the requester becomes aware of the suit at all they can ask to intervene, but it’s not an automatic thing.
WCOG is looking for a legislator to sponsor a bill to close the loophole that allows agencies to duck fees and penalties, but so far has no takers.