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The Impact – Evolution of the Public Records Act

Mike McClanahan profile by Mike McClanahan

“There’s always some problematic communication that exists out there.”

– Paul Queary, Founder & Editor of The Washington Observer

March 12- 18 is Sunshine Week 2023. It’s a time dedicated to raising awareness of issues related to public records, government transparency, and accountability.

The state public records act provides a window into the inner workings of government. The root of the law, Initiative 276, was approved by voters in 1972. Since then, the list of exemptions to the public disclosure law has grown to include several hundred categories of information. Meanwhile, the number of records subject to the act has grown substantially, largely due to technological advances and changing modes of communication.

Paul Queary is one of the people who watched those developments from the front row. He’s the creator and editor of The Washington Observer newsletter. His political journalism background involved several years of covering state government for the Associated Press in Olympia and later running the Seattle branch of the AP. Following that he worked as a strategic communications consultant for a period of time, gaining an insider’s view of how the PRA impacts both professional worlds.

During a March 15 interview on The Impact, Queary weighed in on how laws that date to the early 1970’s have evolved to address 21st century modes of communication like email and texting.

“I think it’s created a lot of things that don’t look like, you know, traditional records. For example, a member of the legislature might be standing on the floor of the House visibly text messaging on his or her phone and  some part of that text messaging would be exempt from the public records law, if you’re talking to your wife about what you’re having for dinner. And some part of it, if you’re talking to someone about a bill that’s about to pass, that’s very clearly part of the public records law,” said Queary. “That whole question of what’s covered and what’s not I think has caused folks a lot of heartburn in recent years.”

Queary offered this perspective on the debate over what constitutes a public record and what can be labeled off limits:

“There’s always some problematic communication that exists out there,” said Queary. “Part of the risk of, you know, of the large governmental organization is that the public records law is going to create problems and embarrassments for its leaders.”

 “The Public Records Act as written is very broad. Everything that’s not specifically exempt is supposed to be covered,” he continued.

There are several hundred exemptions that have been added over the years, but any non-exempt written documents, files, photos, audio, or video recordings relating to the work of government or records that are owned, used, or retained by any state or local agency are fair game.

Typical examples of public records in Washington include:

  • Court records, case files, and rulings
  • Government contracts  
  • Minutes and agendas from government meetings
  • Property deeds and mortgage documents
  • Police reports
  • Environmental permits and inspections
  • Public employee salaries 
  • Voter registration records
  • Campaign finance reports
  • Real estate appraisals for property tax purposes 
  • Food safety inspections of restaurants 

Lesser known examples of public records in Washington may include:

  • 911 emergency call recordings  
  • Records related to government surveillance technology 
  • Records related to the use of force by law enforcement officers 
  • Complaints and disciplinary actions against health care professionals 

Examples of categories exempt from public disclosure include:

  • Sensitive financial information     
  • Personal medical information
  • Records relating to individual religious affiliation
  • Information about juvenile victims of crime

New types of policies could create new types of records in the future if, for example, the state were to start charging a pay-per-mile fee to fund transportation infrastructure.

“I think that that’s an example where you’d have a system that would create a really massive database that would be, could conceivably be of interest to a lot of people. And it would be linked to your identity in some way because they’d be charging you a tax on it,” said Queary. “So now you have a lot of documents, a lot of records that just previously didn’t exist.”

“… if the per mile road usage fee were to entirely replace the gasoline tax, now everybody in the state would be associated with a record of at least how far they drove. And I think that probably in the creation of the record, there would be some kind of data that indicated where you went. How you handle that data and at what point it gets, you know, deleted or protected or encrypted in such a way that that your comings and goings don’t become a public record, that’s a big hairy question for the folks advocating for that,” said Queary.