I want to cover two disparate topics in this article, so the structure of this article is two unrelated discussions, one after the other.
Public disclosure laws exist at both the federal and state levels. At the federal level, we have the Freedom of Information Act, commonly referred to as FOIA. In Washington State, we have the Public Records Act, found at RCW 42.17* (for those of you who want the legal citation to look it up. By the way, if you want to read actual state laws, for any reason, this link will take you to them:
(* The correct citation form is “Chapter 42.17 RCW,” but as I’m writing this article for a non-lawyer audience, I say screw that!!!)
Our state law was enacted by citizen’s initiative and was intended to make government more accountable and accessible to ordinary citizens by requiring public agencies to open their official records to the public. There are certain sensible exemptions, such as the home addresses and social security numbers of public employees, but the general rule is that public records, or the more aptly nicknamed, people records, (and the definition of “public records” includes e-mails and computer files) must be disclosed to any person who requests them. Most of us are accustomed to thinking of the Public Records Act in the abstract, and in global terms, but what I want to do in this article is put a human face on the PRA and give you a sense of its real-life implications.
There is a state agency that enforces the laws requiring parents to pay child support for their minor children who are not living with them. Federal law requires all states to have such enforcement agencies. Fortunately for cash-strapped states, this is not one of those “unfunded federal mandates” you hear local politicians complaining about (see, e.g., municipal water reservoir lids); the federal government gives the states money to run this program. Here in Washington, the child support program exists in the Department of Social and Health Services, which is reimbursed about 85% of its costs (mostly staff salaries, but also office rent and computer systems) by the federal government. I spent several years working as a state attorney for this program.
In that capacity, I was in charge of responding to all the requests for public records received by a regional office. I was responsible for strictly complying with the disclosure laws. In the context of this agency’s mission and workload, the most common request was for the address of a parent or child.
Handling such requests may strike you as fairly simple. It’s not. When I accepted employment with this agency, I was required to sign a form agreeing to keep the information I had access to in the course of my duties confidential. The form said if I failed to do so, I not only would be fired from my job, but also would go to prison. This made is sound like they wanted me to take the privacy of citizens’ private information very seriously. And I did. On top of that, common sense told me that getting careless with someone’s address could have serious consequences. It could literally get someone killed. (As an fyi, on a fairly predictable basis, roughly 50 women, plus or minus 5, are murdered by their domestic partners in Washington state every year.) So, you’ve got to be damned careful. Human judgment is required, which is way Washington’s child support attorneys are paid the dramatic salary of forty thousand dollars a year, instead of the minimum wage that conservatives think all state employees should work for. Talent costs money.
Toward the end of my public service career, I had the privilege of handling a truly interesting public records case that involved the address of a minor child. Let’s call her “Myra” (not her real name), and let’s call her parents “Dad” and “Mom” (also not their real names). When Myra was a baby, Dad and Mom were doing drugs, so a court took Myra away from them and given to “Grandma,” who became Myra’s legal guardian and raised her as her own daughter. Myra had no memories of her parents; she never knew them. When she was a few months old, they went to California and disappeared into the drug scene there. Eventually both of them went through rehab, became clean and sober, and returned to Washington State together a couple weeks before Myra’s 18th birthday. They showed up in our office and filled out the forms to request their daughter’s address. They knew Myra was in the child support system, of course, because they were being dunned by the state to pay child support. A caseworker helped them with the forms, then dropped them on my desk.
About an hour later, another caseworker received a phone call from a 17-year-old girl named Myra who had been raised by her grandmother and had never met her real parents. She was no longer living with her grandmother, but with a boyfriend whom she planned to marry as soon as she turned 18. Her problem was she wanted her Dad to give her away at her wedding, but didn’t know where he was. So she called to find out if the agency had his address. She suspected we did, as we were collecting child support from him and giving it to her grandmother. The caseworker duly noted her request and dropped it on my desk.
It probably won’t surprise you that I immediately suspected a connection. Sure enough, the last names and social security numbers matched. What I had in front of me was the parents of a long-lost child, and the child, requesting each other’s addresses – by coincidence, on the same day, 17 years and 11 months after they were separated by court action.
Obviously, consent wasn’t going to be a problem, but I had to go through the procedures of notifying all parties in writing of the requests and advising them of their right to refuse to consent to disclosure of their addresses. I mailed them consent forms along with the form notification letters. There was a complication. Because Myra wouldn’t be 18 for another two weeks, her legal guardian had to sign the consent form. So I called Grandma on the phone, explained the situation, and asked her if she would sign the consent form if I mailed it to her. Her response was, “Hell no, those people are no good, and Myra shouldn’t have anything to do with them!” Consequently, I had no choice but to formally deny both requests. It probably won’t surprise you that the parents and Myra both filed appeals of my denial letters, which went to a higher level office in Olympia, to be scheduled for a formal hearing before a judge.
Of course, in my denial letter to Myra, I informed her that she could resubmit her request after she turned 18. Which, of course, she did. And I probably don’t need to tell you that on the day of her 18th birthday, her parents were camping in their car out in the parking lot waiting for our office to open, and showed up at the service counter at precisely 8 a.m., where I was holding a sealed envelope with Myra’s address in it. Before I handed it over to them, I told them what city Myra was living in, and informed them they had about a four-hour drive ahead of them to get there, and that Myra was expecting them to arrive around noon. It brings tears to my eyes to tell you this story, which of course had a happy ending. I wish like hell I could have been there, but I was being paid by the taxpayers to do the public’s work, so I couldn’t leave the office, and besides public servants like me aren’t supposed to get personally involved in matters they handle in their official capacity. I heard later the wedding went off without a hitch. I sure hope Myra and her beau are still happily married, will stay that way, and will grow old together. The odds are against them; half of all U.S. marriages end in divorce, and most divorces are acrimonious. I don’t know what happened to them, but I can dream, can’t I?
(And righwingers would have you believe us faceless bureaucrats have no hearts … hmmm.)
That takes care of the first topic. The second topic involves misuse of the Public Records Act to harass government workers by whackos who hate government and take out their hatred on people who work for government because they need a job to support their families. For this discussion, I’m going to focus on folks who call themselves “sovereign citizens.” Maybe you’ve heard of them, maybe not. The so-called “sovereign citizen” moveent grew out of the tax protest movement of the sixties. It has no organization or leaders; all the people who created it are now dead. It survives as an ad hoc movement in the byways and back alleys of the world of fringe movements. It probably continues to exist because a significant number of people make money from it by running little cottage industries in their homes that sell seminars, tapes, books, and form kits to gullible people who are desperate to get government enforcement agencies off their backs, which got on their backs after their lives fell apart and they became unable to pay their legal obligations. People like that are easy pickings for snake oil salesmen. I became one of Washington state government’s top legal experts on “sovereign citizens” because I had to deal with these misguided malcontents frequently, so it behooved me to read up on their ideology and methodology.
Their basic theory works like this. If a nation-state with an army can declare its sovereignty over a particular territory, why can’t you? The only thing stopping you is your own free well. (And your lack of an army to enforce your territorial claims, but that’s a nuance these folks somehow miss.) Like any other government, you can become a sovereign entity by the simple act of declaration. In the case of the individual, sovereignty is portable rather than territorial; your declaration of personal sovereignty creates a bubble that follows you wherever you go. I’m not sure how big it is, but I assume it extends at least three feet from your body in all directions. Supposedly this status deprives federal, state, and local governments of any jurisdiction over you (except admiralty for matters rising on the high seas), which exempts you from paying taxes, obeying traffic laws, and so on. These people are heavily into symbolism. For example, if they are dragged into a court of law displaying a flag that has a gold fringe on it, they will submit to the court because the gold fringe signifies it’s an admiralty court, even if the only cases the court handles are small claims. Likewise, they won’t put ZIP codes on their mail, and will refuse to accept mail with a ZIP code on it, because doing so would resubmit negate their sovereignty and resubmit them to governmental authority. So does having a state-issued license plate on your car, so they equip their vehicles with their own homemade cardboard “license plates.”
Alabama executed two “sovereign citizens” for an incident arising out of a routine traffic stop. On October 4, 1993, George Sibley and Linda Lyon Block gunned down Opelika police sergeant Robert Motley for requesting Sibley’s driver’s license, who of course didn’t have one. On May 10, 2002, Block became the last person to be executed in Alabama’s electric chair. Sibley, whose appeals lasted longer, was put to death by lethal injection on August 4, 2005. (At their trials, Sibley and Block refused to cooperate with their defense attorneys, and argued the state couldn’t try them because it hadn’t been properly readmitted to the Union after the Civil War. Stop and think about this. They were charged with a capital crime and facing the death penalty. Their survival was on the line. Could these two characters possibly have been rational, or were they insane?)
The “sovereign citizen” movement has a standardized methodology for harassing government workers which works like this. They submit a Public Records Act request to a public agency. What they’re requesting is immaterial, because no matter how the agency responds to it, they’ll claim the agency didn’t complain with the PRA. The next step is to file a lien against the state – usually for a large sum, such as $1 billion – and then they write checks to private businesses against the “account” created by the lien, which in their thinking works just like a bank checking account. Of course, it doesn’t, and they ended up getting arrested for check forgery. A variation of this technique is to file liens against the personal property of targeted public employees. Washington, like a number of other states, has taken proactive steps to protect public workers against such harassment by passing a law that requires a judge to sign off on any lien against a public servant before it’s filed. Failing to comply with this law is a felony, and you go to prison for it. This has effectively deterred most “sovereign citizens” from filing liens against public workers and has pretty much shut done that particular harassment, although a few fledgling “sovereign citizens” who haven’t gotten the word still occasionally get into serious trouble with the law by filing liens against judges, prosecutors, and other public servants.
The Public Records Act, of course, was never meant to be used as a tool to harass public workers, but government-haters routinely use it for that purpose. People like me who work for government have to be nimble to stay ahead of them. A typical public records request from these people is dozens of pages long and contains hundreds of request items. It’s all boilerplate, of course, that they got from a form kit they paid some kitchen-table entrepreneur $150 for, and a lot of it is poorly drafted. You’ll see requests for state records being asserted under the authority of the federal FOIA, for example. What I, and other public agency records officers, had to do with these is go through them, item by item, and respond to each item constituting a legitimate request, and provide an explanation of denial for each item you didn’t fulfill. For example, when they requested a xerox copy of the entire United States Code, which is about the same size as the Encyclopedia Britannica, I routinely responded that a statute is a not a “public record” as defined by the PRA and therefore the agency didn’t have to provide them a copy of it. But the best tool I had for dealing with these harassers was the agency’s statutory authority to charge them 10 cents a page for the copies. If they wanted 100,000 pages of records, I told them in my formal written response, they would get within 5 days after the agency received their payment of $10,000. I never had to copy 100,000 pages of anything, because none of them were willing to spend $10,000 of their own money to harass me.
The purpose of this discussion is to point out that some people are willing to use laws intended to benefit our citizens for malevolent purposes, and the people who work for government have to deal with that. The principle behind the Public Records Act is simple, and its purpose is benign, but the actual administration of the public records laws is highly complex and can do a lot of damage to real people’s lives if mishandled. You really do have to be an expert to handle a public records request properly, in a way that protects individual rights yet gives members of the public what the law intends to give them.
I’ll close this article on public records laws with another anecdote. Some years ago, the Blaine School District received a public records request from the ACLU’s Seattle office. School district administrators knew they had to give the ACLU the records they were requesting, but didn’t want to, so they refused to mail them and insisted the ACLU send someone up to Blaine to pick them up at the school office. If you’re going to mess with an organization, pick one that isn’t full of civil rights lawyers who are experts on public records laws! The ACLU took the school district to court under the PRA penalty provisions, and this bit of nonsense ended up costing school district taxpayers $58,000 in penalties, not counting the school district’s attorney fees, which probably went deeply into six figures. These stubborn school administrators, bent on vexing the ACLU out of nothing more than pique, probably cost the taxpayers who fund their paychecks close to a million dollars. They should have been fired, but I’ll bet they weren’t. That’s how things work: People who don’t know what they’re doing screw up and you get the bill.
Recently, reform legislation has been introduced in Olympia to take the private profit out of PRA infractions by public agencies. The agencies still would pay financial penalties, but the money would go to a public fund instead of private individuals whose public records requests weren’t properly complied with. I don’t know whether it passed; I don’t think it did. The fact Stefan Sharansky collected $225,000 from King County Records and Elections for a technical violation of the PRA convinces me that we need such reform. It wouldn’t undermine the incentives for public agencies to comply with the PRA. At the same time, we do need to shut down the private profit-making business that some enterprising individuals have turned the PRA into.