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Fraud’s not the issue in petition disclosure

Post by Patrick O'Callahan on Sep. 19, 2009 at 6:27 pm with 2 Comments »
September 18, 2009 6:31 pm

This editorial will appear in tomorrow’s print edition.

Tim Eyman’s latest charge against state officialdom sounds like a bombshell.

The state’s most prolific initiative peddler e-mailed his supporters and the press last week to allege that the “Secretary of State has been perpetuating a fraud.”

Pretty strong words, even for the hyperbolic Eyman.

He claims that Sam Reed is lying when he says that referendum and initiative petitions and the names on them have long been considered public documents in this state. (Reed’s comments came in the wake of a legal challenge to the release of petitions related to Referendum 71, the effort to overturn the state’s “everything but marriage” law for same-sex couples.)

The problem is, this is a sideshow. The dispute over Washington public records law is effectively settled, as it pertains to petitions. The main show lies in federal court, and it revolves around the Constitution.

The secretary of state’s office has indeed been wrong to the extent that it has suggested the release of petitions has been standard practice in Washington. As Eyman asserts, none were released until three years ago, starting with Initiative 917 – the “Save Our $30 Tabs” measure. But the idea wasn’t to spank Eyman personally.

The secretary of state’s office in fact did not release petitions until 2006. The reason, between 1998 and 2006, appears to have been technology, not a vendetta against Eyman.

Before 2006, state archivists stored petition copies on microfilm – not digital CD-ROMs – and charged a fee of 10 cents a sheet for copies of initiative petitions, which could ring up fast. It could have cost thousands of dollars for paper copies of the petitions for a successful initiative. According to the staff, no one followed through on such an expensive request.

After what seem to have been endless deliberations by state archivists, the state in 2005 finally adopted a digital standard of record storage – hence the availability of cheap, data-packed CDs in 2006.

Another fact in Eyman’s claim: Prior to 1998 – even had anyone been willing to pay the bill – the secretary o f state’s office would not have voluntarily released petition signers’ personal information.

The reason: Reed’s predecessors read the law differently. Like Eyman, they believed the limited privacy protections in the public records act barred access to the names of those who signed initiative and referendum petitions.

A 1998 attorney general’s opinion concluded that the law all along compelled disclosure – even if earlier state officials hadn’t been following it. Washington’s open records policy clearly states that privacy concerns cannot bar the release of a government document unless the information is “highly offensive to a reasonable person” and “not of legitimate concern to the public.”

Any attempt to meet that two-prong test with referendum petitions would inevitably fail. Public disclosure of petitions and the names on them is vital to independent scrutiny of their handling and verification by government officials.

The real legal fight over the release of R-71 petitions isn’t about whether state law is being read correctly; it’s about whether that law conflicts with the First Amendment. One federal judge has already tentatively concluded that it does.

That’s got nothing to do with conspiracies against anti-tax initiatives or other shenanigans in the secretary of state’s office.

Leave a comment Comments → 2
  1. jimkingjr says:

    Who, other than Eyman, has been claiming its about fraud? What the TNT is acknowledging here is what I’ve been saying all along- for decades, no one thought these petitions were disclosable. And no one has brought forward a good reason why they should be disclosable (other than “It’s the law”- and that is being trumped in federal court all too easily).

    This is a bad casew for the state to pursue, instead of just taking its loss at the district court level and moving on. After the dust starts settling, after the hyperbole begins to cool, does anyone really believe that respecting the privacy of petition signers will undermine open government in any way?

  2. The simple answer to this is that privacy should be at the discretion of the individual signer, not the courts.

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