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  • The Cost of Secrecy

    The Cost of Secrecy

    Seattle Weekly, WA
    Aug 3 2005

    A citizen pursues meaningful monetary punishment for King County's
    failure to disclose public records.

    by Rick Anderson and Chuck Taylor

    It shouldn't take a rocket scientist to comprehend the state's
    public- disclosure law. But Armen Yousoufian, 57, who once helped
    build missiles for Boeing, had to go where no man had gone before. He
    ran an eight-year gauntlet of closed King County government doors,
    bureaucratic roadblocks, and finger-wagging officials. They told
    him he just didn't understand a state law that is intended to splash
    sunshine on the schemes of public servants.

    Later this month, he is likely to show just how wrong they were.
    Yousoufian could be awarded up to $825,200 in public funds, although
    out of the goodness of his heart he is asking for merely $742,680.
    State law allows up to $100 per day in fines against public agencies
    that fail to disclose requested records. In Yousoufian's case,
    King County-under executives Gary Locke and then Ron Sims-dallied
    for no less than 8,252 days. The stalling dates back to the time
    of Yousoufian's first request in 1997 for documents related to the
    proposed new Seahawks stadium, now called Qwest Field, which was built
    largely with public money for team owner and Microsoft co-founder Paul
    Allen. Frustrated by the runaround, Yousoufian sued, and a King County
    Superior Court judge in 2001 found the county's actions "egregious,"
    handing out a $5-a-day penalty.

    Sore winner, Yousoufian appealed and won a rehearing on the penalty
    amount. Today, he says, "We're asking for $90 per day versus the
    original award of $5, which both appellate courts said was too low-and
    for the additional legal fees." Those would be his attorney bills,
    $330,000, he says. Altogether, at a penalty hearing set for Aug. 19
    in King County Superior Court in Seattle, Yousoufian could be awarded
    up to $1,155,000 in public money because a public agency thought it
    didn't have to tell the public how it was spending public money.

    That should be a stinging reminder to government officials and a
    victory for the little guy-although Yousoufian, a former Seattle
    hotelier, had some bucks to spend. Yousoufian's landmark victories
    have also strengthened the state Public Disclosure Act (PDA). In two
    subsequent court rulings, his case was cited in the awarding of daily
    penalties of $50 and $75. Legislative amendments have also pumped
    up the disclosure law this year. State Attorney General Rob McKenna,
    who has made a strong PDA a priority, has launched a statewide tour
    to inform the public about new aspects of the disclosure law. Among
    them is a requirement that officials must help citizens narrow the
    scope of requests and not flatly reject them as too broad, an easy out.

    The recent efforts to make governments more respectful of the
    public-disclosure law, whether through litigation or outreach, are
    a good thing, but the law itself could use more work. The PDA still
    contains a loophole big enough to swallow up roomfuls of filing
    cabinets. A government official who wants to lock a record from
    public view can copy it to a government attorney and argue that it
    is attorney- client privilege that precludes disclosure. That aspect
    of the law was challenged last year by Seattleite Rick Hangartner,
    who sought documents from City Hall about light-rail permits. In
    Hangartner v. City of Seattle, the state Supreme Court (attorneys all,
    mind you) ruled against him and allowed the city to withhold records
    on an attorney-client basis, even though their release posed no threat
    of litigation.

    "The nonlitigation-based attorney-client privilege the Supreme Court
    created in Hangartner will continue to be the great hiding place for
    information the government does not want to disclose," says Michele
    Earl-Hubbard, whose law firm, Davis Wright Tremaine, represents
    Seattle Weekly and The Seattle Times, among other media outlets.
    "This will continue until the Legislature, the Supreme Court, or the
    voters of Washington take the law back to the way it was before."
    Earl-Hubbard, who serves on the board of the nonprofit Coalition for
    Open Government (www.washingtoncog.org), says all that's needed is
    the insertion of four words. To be exempt, records should have to be
    "relevant to a controversy"- relevant to completed, existing, or
    reasonably anticipated litigation. But proponents of such a change
    have run into the "government-lawyer lobby," as Earl-Hubbard calls
    it-lobbyists supported by taxpayers to oppose opening records to
    taxpayers.

    Obviously, there's need for more public and media access to records.
    Apparent or actual fraudulent and incompetent government practices
    abound. But it wasn't just high-profile bureaucratic shortcomings
    that voters sought to shine a light on when they passed the measure
    in 1972. The introduction to Chapter 42.17 of the Revised Code of
    Washington says it should be a matter of routine: "The provisions
    of this chapter shall be liberally construed to promote complete
    disclosure of all information respecting the financing of political
    campaigns and lobbying, and the financial affairs of elected officials
    and candidates, and full access to public records so as to assure
    continuing public confidence of fairness of elections and governmental
    processes, and so as to assure that the public interest will be fully
    protected." Reads the preamble to the public-records statute and a
    companion law, the state Open Public Meetings Act (Chapter 42.30),
    passed by the Legislature in 1971: "The people of this state do not
    yield their sovereignty to the agencies which serve them. The people,
    in delegating authority, do not give their public servants the right
    to decide what is good for the people to know and what is not good
    for them to know."

    That said, both the open-records and open-meetings laws have numerous
    exemptions, many of which have been added by the Legislature over the
    years, effectively chipping away at their original intent. For among
    other reasons, elected bodies can hold closed, "executive" sessions
    to consider such matters as those affecting national security,
    real-estate transactions and contract bids, and certain personnel
    matters. The meetings law also allows closed sessions to discuss
    "potential litigation," but not in the blanket sense-there has to be
    an actual threat of litigation or a lawsuit. There's no way to know
    if city councils and boards and the like are adhering to the law-we
    have to trust them. Actual votes, at least, must be public.

    The open-records law has exemptions, too. Exempt are some material
    in personnel and law-enforcement investigative files, certain records
    containing personal or private financial information, and proprietary
    business data and trade secrets. There are dozens more exemptions
    to disclosure that are arcane and debatable, but nothing with an
    effect as sweeping as last year's Hangartner decision, which makes
    it possible for a public official to send a carbon copy of an e-mail,
    memo, or document to a government attorney, for no particular reason
    but to keep it confidential.

    If the public can't demand access to such documents, citizens and
    journalists increasingly must rely on agency employees to blow the
    whistle on mis-behavior or unjustifiable secrecy. Populist Olympia
    attorney Shawn Newman and the Freedom Foundation's Jason Mercier
    think one answer is a state false-claims law, similar to an existing
    federal whistle-blower's law. It could allow citizens to obtain denied
    documents through court proceedings while also pursuing civil charges
    against an agency. The public or government workers would have the
    ability to come forward in a protected status and collect damages-
    the latter a "major incentive for such citizen involvement," they say.

    Yousoufian, though, wasn't thinking of such payoffs when he wrote a
    public- records request on May 30, 1997. His inquiry was inspired in
    part by his daughter, Marysia, who wondered about Safeco Field. Why
    was it built next to a perfectly good stadium, the Kingdome, that
    already had a roof on it? He didn't understand it himself, so he
    went looking for explanations for that and plans for the new football
    stadium to replace the Kingdome. As a businessman interested in taxes
    that might affect the University District hotel he has since sold,
    his initial records request was for "studies indicating that the
    'fast food' tax had not been passed on to consumers (referred to by
    Ron Sims in an interview on KUOW)" and other studies on the stadium
    proposal. As the bureaucracy went into full stall, the native New
    Yorker became increasingly curious about the deeper backstory of
    the state's and King County's deal with Allen. Yousoufian used his
    self-described "nerd" credentials to obtain and pore over government
    contracts, e-mails, and letters. The closer he got to the truth,
    the harder the government pushed back, taking weeks, then months,
    then years to respond to his records requests.

    Instead of giving up, Yousoufian was energized by the rejections.
    "They picked on the wrong Armenian!" he liked to say. He evolved from
    businessman to crusading documents diver. Among other developments,
    the records he unearthed helped Seattle Weekly report how billionaire
    Allen engineered a deal for a $430 million stadium that wound up
    costing taxpayers close to $1 billion when interest is figured in.
    Allen, relying on a loan from the National Football League, paid
    a comparatively small amount out of his pocket (see "After Further
    Review," Feb. 12, 2003).

    Ironically, the Public Disclosure Act itself became an obstacle. When
    Yousoufian rightly tried to wield its penalties to pry loose more
    records, the court tamped down fines intended to inflict pain on
    deceptive public agencies. His initial victory in 2001 earned him just
    $25,450 based on a fine of $5 per day for each of the 5,090 days the
    county stalled. He also got more than $100,000 in attorney fees.
    To Yousoufian, that didn't pay for his time nor send the right
    message. He appealed. A state appeals court and then the Supreme
    Court both agreed a higher penalty was necessary for the county's
    gross negligence and added 3,162 penalty days to the clock. The
    original trial court now must decide, Yousoufian says in court papers,
    "the third factor in the equation based on the circumstances of King
    County's failure to comply with the law, its culpability, and what
    it will take to deter a large, wealthy jurisdiction like King County
    from future violations."

    In a trial brief, Yousoufian's attorneys note that the county has
    now agreed the original fine should, in all fairness, be doubled-to
    $10 a day. Well, if the court "is to use the full penalty scale,
    and if culpability, along with deterrence, is to be the measure of
    where a violation fits on the penalty scale, what would a case look
    like that fell somewhere in the $85-$90 range?" the attorneys ask. "It
    would be a case that looked like Yousoufian's, a case of repeated and
    prolonged gross negligence. . . . " They point out that the Supreme
    Court said King County told Yousoufian all documents had been produced
    when they had not, told him archives were being searched when they
    were not, told him documents were being compiled when they were not,
    told him hundreds of hours were spent retrieving requested documents
    when they were not, and told him only the county executive's office
    was responsible for retrieving executive documents-again, not.

    Observed the high court: "When the county did make an informed effort
    to find the documents, they were located and produced within a couple
    of days. . . . " As Yousoufian describes it: "I was stonewalled." In
    two weeks, he finds out how much the county spent to build that wall.
    He thinks he'll be satisfied. But he can always appeal.
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