HOUSE BILL REPORT
HB 1134
As Reported by House Committee On:
State Government Operations & Accountability
Title: An act relating to an open government ombudsman.
Brief Description: Creating an open government ombudsman.
Sponsors: Representatives Nixon, Haigh, Williams, P. Sullivan, Shabro and Linville.
Brief History:
State Government Operations & Accountability: 2/1/05, 3/2/05 [DPS].
Brief Summary of Substitute Bill |
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HOUSE COMMITTEE ON STATE GOVERNMENT OPERATIONS & ACCOUNTABILITY
Majority Report: The substitute bill be substituted therefor and the substitute bill do pass. Signed by 8 members: Representatives Haigh, Chair; Green, Vice Chair; Nixon, Ranking Minority Member; Clements, Assistant Ranking Minority Member; McDermott, Miloscia, Schindler and Sump.
Minority Report: Without recommendation. Signed by 1 member: Representative Hunt.
Staff: Marsha Reilly (786-7135).
Background:
Initiative 276, passed by voters in 1972, requires public access to government records, unless
the record is exempt from disclosure. Within five business days of a request for a public
record, an agency must (1) provide the record; (2) acknowledge the request and provide a
reasonable estimate of the time needed to respond to the request; or (3) deny the request.
If the request is denied, the person making the request may ask the Attorney General for a
written opinion on whether or not the record is exempt. Such a request does not establish an
attorney-client relationship. The requester may seek court action and, if successful, shall be
awarded all costs, including reasonable attorney fees, in connection with the legal action.
The court also has the discretion to award an amount between $5 and $100 for each day that
the requestor was denied the right to the public record.
One of the specific exemptions from disclosure relates to records relevant to a controversy in
which an agency is a party (RCW 42.17.310(j)). However, in the recent Hangartner case, the
Washington Supreme Court interpreted that the attorney-client privilege in RCW 5.60.060(2)
applies regardless of the controversy exemption.
Summary of Substitute Bill:
An Office of Open Government Ombudsman (ombudsman) is created for the purpose of
providing information on public records and open public meetings to state and local agencies
and the public, and to represent the public in obtaining public records. The ombudsman must
be a member of the Washington State Bar Association and must have training or experience
in issues of public disclosure and public records. The ombudsman reports to and is appointed
by the Attorney General and shall serve a term of three years unless reappointed. The
ombudsman may be removed from office only for neglect of duty, misconduct, or inability to
perform duties.
The ombudsman is directed to:
The ombudsman must adopt rules to establish a formal complaint process. A complaint is considered legally sufficient if it includes the grounds and factual basis of the complaint and is signed by the complainant..
Substitute Bill Compared to Original Bill:
The substitute bill moves the Office of Open Government Ombudsman from the jurisdiction
of the state auditor to the jurisdiction of the Attorney General.
Appropriation: None.
Fiscal Note: Available.
Effective Date of Substitute Bill: The bill takes effect 90 days after adjournment of session in which bill is passed.
Testimony For: The Attorney General has a dual mission and that is to defend agencies and
enforce the law. This conflict would be alleviated by moving some of the responsibilities to
the state auditor. An office like this exists in other states and works very well. Citizens
should not have to pay to take legal claims forward through the courts. The Allied Daily
Newspapers is in favor of the bill. The Evergreen Freedom Foundation (EFF) is in favor of
the bill. The EFF makes frequent requests for public records and also helps the public by
answering questions on how to make requests. Creating a public records advocate and public
records clearinghouse would ease the frustration some governmental entities feel in
responding to records requests. I would also ease the suspicion the public sometimes
justifiably holds in how their records requests are being handled. Many abuses to
Washington's public records law have been well documented. When even the state auditor
has been denied access to records by agencies as cited in last year's statewide accountability
report, the obstacles facing the public are only multiplied. Texas' public records activities
have been met with great support and serve as a model. Though Texas has placed these
activities in the Attorney General's office, a similar undertaking in Washington may prove to
create a conflict of interest. While Attorney General McKenna has made compliance with
public records law a priority, that office has faced public records violations in the past and the
proposed advocate seems better suited within the state auditor's office. There is a lot of abuse
in what agencies do and agency lawyers are a part of the stonewalling. It is unfortunate that
we need to have this conversation about an ombudsman. The benefits would outweigh the
costs. The open records act is a way to find out about public agency rules and legal actions.
An ombudsman is very important. Officials need to be reminded of their responsibilities and
citizens need to find out what their government is doing. There should be reconsideration
about whether the ombudsman needs to be an attorney. Costs saved in litigation are enough
to fund the position.
(Neutral) The State Auditor is a staunch supporter of the Public Records Act and will carry
out the intent of the act if the Legislature decides it is appropriate to put the ombudsman in
the State Auditor's Office.
Testimony Against: None.
Persons Testifying: Representative Nixon, prime sponsor; Dan Wood, Washington State
Farm Bureau; Rowland Thompson, Allied Daily Newspapers of Washington; Jason Mercier,
Evergreen Freedom Foundation; and Armen Yousoufian.
(Neutral) Brian Sontag, State Auditor.