While it’s good that Seattle City Attorney Pete Holmes reversed course and decided not to countersue The Seattle Times in a public-records lawsuit, the issue is far from settled.
Holmes must clearly and publicly pledge never to use that tactic against anyone seeking public records.
This is necessary to reduce the chilling effect the threat of lawsuits seeking fees has on people seeking public records, and to prevent other municipalities and government agencies from emulating Seattle’s approach.
This goes far beyond The Times’ lawsuit, filed as a last resort in pursuit of records of what happened during last summer’s protests and rioting.
It’s especially needed because local news organizations are dwindling. Few still have the resources or inclination to fight for records on the public’s behalf, and public records are increasingly sought directly by individuals.
It should be clear to everyone in Washington, where “the people insist on remaining informed,” as its bedrock transparency law states, that it’s wrong for public agencies to countersue and seek legal fees from anyone seeking public records.
Even if Holmes didn’t countersue, City Hall’s atrocious handling of records is denying Seattle voters critical information they need right now.
Ballots are due Aug. 3 in the primary races for Seattle mayor, two city council seats and city attorney. Holmes is seeking reelection, City Council President M. Lorena González is running for mayor, and Councilmember Teresa Mosqueda is seeking reelection.
Voters are deciding blindly because they know so little about how the city handled upheaval and crisis last summer that included multiple fatalities, and the police chief’s resignation.
Mayor Jenny Durkan didn’t retain messages, her lawyer obfuscated and council members delayed responses. Then Holmes countersued and sought to prolong The Times’ lawsuit.
So the dispute continues as voting on new city leadership is almost over, and a cloud remains over future records requests.
Holmes withdrew his counterclaim Monday, after outcry and condemnation from even political allies. Yet he only issued a mealy-mouthed explanation, wrongly suggesting he was doing something common.
In my Sunday column, I suggested the Legislature should pass a law prohibiting governments in Washington from using that tactic, which transparency experts say is deeply harmful to open-government and First Amendment rights.
State Rep. Gerry Pollet, a Seattle Democrat and public-records advocate, suggested sitting tight on legislation for now. That’s because there’s a risk of unintended consequences if the Legislature takes another crack at the Public Records Act; sadly that may result in more loopholes and secrecy.
Pollet said he urged Holmes to “speak up and say this is inappropriate, and we shouldn’t have done that.”
“If he’s going to say that publicly, which he told me he was, then I don’t feel like there’s a need for a legislative response,” Pollet said.
I’m not convinced, after getting the official statement from Holmes’ office.
Here’s the whole thing, which isn’t exactly a mea culpa:
“Lost in the Seattle Times’ writing on its own lawsuit is that the counterclaim did not accuse the Seattle Times of any wrongdoing whatsoever, but rather sought precisely the same relief as the Seattle Times itself — a judicial determination of whether the City has complied with the Public Records Act. Despite the innocuousness of that language, as a show of good faith and in the interest of achieving a mutually agreeable resolution to the Times’ case, the City has amended its Answer to withdraw the counterclaim. Further, while a request for attorney’s fees is standard boilerplate language included in most civil litigation, the City has previously publicly committed to not seek attorney’s fees, costs, or damages in this case, so has amended the Answer to align with that stated commitment.”
Government suing for attorney’s fees is not standard boilerplate in litigation brought under Washington’s Public Records Act. It has happened elsewhere, causing outcries, but it’s highly unusual, Jonathan Peters, a University of Georgia media law professor, told me recently.
“These are worrisome exemplars of the resources, the creativity, that the government sometimes expends to parry the press and the public,” Peters said. “It has the effect of making hostility to openness the rule rather than the exception.”
Suggesting this was mere boilerplate is the opposite of what Holmes needs to communicate, especially with other municipal attorneys taking note.
Organizations that train and advise agencies on public records, such as the state Attorney General’s Office, should make clear that it’s wrong to sue record requesters for attorney fees. Use Seattle’s initial response as an example of what not to do.
They should consider using quotes from transparency experts, such as this one in my Sunday column:
“When a government body sues a records requester, it has a tremendous chilling effect on the press and the public’s right to know,” said Gunita Singh, legal fellow at the Reporters Committee for Freedom of the Press in Washington, D.C.
Meanwhile, Pollet and other open-government advocates should stand by and see if Holmes makes clear that his response was wrong and pledges to never again use that tactic against those seeking public records.