Things were looking up for press freedom and transparency in Washington this year.
Except at Seattle City Hall, where the opposite is happening.
In an outrageous and deeply troubling move, the city countersued The Seattle Times when the newspaper filed a lawsuit, as a last resort, to obtain public records of city actions during protests and rioting last summer.
In doing so, City Attorney Pete Holmes revealed himself to be out of step with the public’s interest in open government and accountability for the city’s performance.
This isn’t just a spat between city officials and The Times.
It’s a pivotal disagreement over the public’s right to know about its government in Seattle and Washington state, and whether municipalities should stifle civic engagement and transparency with lawsuits.
Holmes ultimately represents the citizens of Seattle. But he’s prioritizing bureaucratic cover over their right to know what elected leaders did during last summer’s debacle, including mishandled protests, the mob takeover on Capitol Hill, abandonment of a police station and resignation of the police chief.
Holmes is trying to downplay the countersuit. His office, which declined an interview request, now says it doesn’t really intend to seek the cost of retaining Pacifica Law Group to fight the records lawsuit, but it hasn’t withdrawn the countersuit. Pacifica is a politically connected Seattle firm whose lawyers regularly support Holmes’ election campaigns.
But it’s too late. Damage is done, now that the city has shown willingness to sue requesters of public information and chill First Amendment rights.
“The right to speak is a corollary to the right to get information,” said Jonathan Peters, a media law professor at the University of Georgia. “By suing requesters who are trying to learn about their government, the government is discouraging public … ability to learn about its activity.”
The threat of countersuit is especially stifling to individuals, who increasingly make public records requests as local media dwindles and citizens seek information themselves.
“It obviously has a chilling effect on not just journalists but the public as well, trying to hold the government accountable,” said Washington Coalition for Open Government President Mike Fancher, a retired Times executive editor.
The Times, and its willingness to invest in costly investigations and the public’s right to know, is a rarity now that penny-pinching investment firms own half the remaining dailies in America.
Thousands of newspapers, which traditionally fight for open records, have closed and newspaper newsrooms shrank 57% since 2008.
Many survivors can barely pay journalists, much less lawyers to fight secrecy. Being forced to pay for pricey law firms retained by City Hall could put some out of business.
What can be done? The City Attorney’s office should formally retract its countersuit and request for attorney fees, and pledge to never pursue that tactic again.
State legislators, who just passed a powerful new law in April against frivolous lawsuits that threaten civic engagement and vigorous news reporting, should pass legislation prohibiting agencies from countersuing records requesters.
Transparency experts across the country are appalled by Seattle’s action.
“When a government body sues a records requester, it has a tremendous chilling effect on the press and the public’s right to know,” Gunita Singh, legal fellow at the Reporters Committee for Freedom of the Press in Washington, D.C., told me via email.
“When even one journalist is dissuaded from exercising their rights under a public records statute out of concern for having to defend against a reverse-public records suit, the chilling effect has already taken hold,” she said.
Stifling the free flow of information by targeting requesters also subverts the presumption that records are accessible to the public, “to the detriment of not just the requester but society as a whole.”
Suing requesters is uncommon but seems to be on the rise in the last decade, amid a broader trend toward government secrecy, said Peters. He said Seattle is an outlier because its countersuit came after the city’s own ethics investigation found it violated the Public Records Act.
“Suing record requesters is democratically dangerous because these types of actions present a clear risk to the free flow of information that is necessary for the press and the public respectively to monitor and participate in the political process,” he said.
“I just find this entire case highly unusual — it’s not one in which the equities favor the government,” he added.
Secrecy has advanced since the Watergate era, the peak of transparency, said David Cuillier, National Freedom of Information Coalition president and University of Arizona journalism professor.
One reason is because the news industry “has been hobbled economically and has not been as aggressive in acquiring public records or suing for them,” Cuillier told me.
“I think it’s pretty clear that government officials understand the odds of the media suing now are lower, so they’re more likely to just flout the law,” he continued. “I think they’re definitely taking advantage of the media woes.”
Cuillier, a former reporter and editor, sums it up well:
“To take it to this next step and countersue is really a slap in the face to democracy and the people of Washington,” he said. “I wouldn’t put up with that if I lived in Seattle — that’s worth protesting on Capitol Hill itself, put up the barricades! Really, we can’t let our government go down the tubes like that.”