Attorney General Rob McKenna has introduced draft model rules for the Public Disclosure Act designed to help both agencies and citizens with public records requests.

While more sweeping changes to the PDA are called for (e.g. personal fines and criminal penalties against individual violators of the Act), that is outside the scope of these rules. Most of the proposed rules seem reasonable and helpful. But there are few sections in the model rules that, and I can't stress this enough, would severely restrict public access to public records. These particular proposed rules need to be fundamentally changed. Specifically, the rules which state that an agency may satisfy a request for electronic public records "either in an electronic format or by reducing the electronic records to a paper format." [ see this document WAC 44-14-050 and WAC 44-14-07003]. Please express your concerns to Attorney General McKenna about these rules (submit comments at this page) --

Allowing an agency to avoid disclosure of electronic records is a perversion of both the letter and intent of the Public Disclosure Act, and would only grant agencies a safe harbor for avoiding disclosure --

1) An electronic document is not the same document as a print-out, and often contains more information. For example, a spreadsheet can contain formulas and linkages among data elements that are not apparent in a hard copy. A Word document can contain an audit trail of revisions, change dates and authors.

2) Electronic data can be duplicated promptly at a reasonable cost. Printing a large database could be unreasonably expensive and time-consuming to the point of being an obstacle to public access to the information.

3) Most importantly, paper documents can not be easily searched or queried and therefore do not allow citizens the same access to the underlying information that government officials have.

In this day and age where nearly every government document is created and stored electronically, the only sensible approach to public records is to mandate the disclosure of electronic records when so requested. The only conceivable purpose for an agency to satisfy a request for an electronic record with a piece of paper is to impede public access. And if you doubt that a public agency could be so contemptuous of the public as to do this, think again. On Dec. 1 I asked King County elections for the September 2005 primary "batch accountability spreadsheet" (They insisted this document proved that there were no real problems behind the appearance that 390 absentee ballots were missing). I specifically asked for the Excel version of the spreadsheet, which they could have easily e-mailed me within five minutes. Instead, they waited three weeks and then gave me a 40 page print-out that no sane person could reasonably be expected to wade through. This is the sort of misbehavior that should get an agency slapped with the maximum fine, not slapped on the back by the AG's office for good compliance with the PDA.

The AG is holding a hearing this Thursday evening, Jan. 12th in Olympia to take public comments on the proposed rules. This issue is sufficiently important that I'll go to Olympia to testify in person. The AG is also accepting written submissions. The rules will be adopted after Jan. 12th, so this is the last opportunity to submit comments to influence the rules which could have enormous implications for open government. Please express yourself to Attorney General McKenna and encourage him to insist that agencies must release records electronically when they exist in such form and are so requested by the public.

UPDATE: It looks like several other people have submitted comments with concerns about access to electronic records. Among them: David Cuillier of WSU, attorney John Schedler and Evan Caldwell of the Longview Daily News