>> Northwest Now is supported in part by viewers like you.

Thank you.

>> This whole thing is a cover up.

It's right under our noses.

>> And piece by piece they solved the greatest detective story in American history.

>> There is no way the Whitehouse can control the investigation.

>> Tom Layson: As conspiracies go, Watergate almost seems like the quaint good old days compared to our recent history.

Today, the need for truth, common values, and a factual understanding of government, policy, and process is more important than ever.

And it's open public meetings and public records that pave the way.

We're discussing open government in Washington State and the positive and negative impacts COVID is having.

That's next on Northwest Now.

[ Music ] If you have ever wondered why I do this program every year, this past year should eliminate any doubts.

Getting accurate information is a matter of life and death, and around here the best truth-seekers make liberal use of Washington's Open Public Meetings and Public Records Acts to shed light, kill rumors, and disprove wacky conspiracy theories.

Next week is something called "Sunshine Week" where the media puts a spotlight on the seemingly obvious virtues of open meetings and open records.

But this year, government at all levels is either being victimized by COVID or using COVID as an excuse, with the result being a major breakdown of both the Open Public Meetings and Public Records Acts.

The debacle at the Employment Security Department resulted in functionally unfilled records requests submitted by the State Auditor and journalists and lawmakers, all trying to get to the bottom of the massive theft and the administrative gridlock.

The City of Seattle now has a backlog of thousands of records with estimated wait times of up to a year.

And all of this sits against the backdrop of an order issued by the Governor last March that relaxed certain portions of the state's open records law.

So here we are with meetings hard to access and public records requests on ice.

While a lot of state agencies and local governments struggle, others still try to go above and beyond, like the Washington State Recreation and Conservation Office.

You may have never heard of the State Recreation and Conservation Office, or RCO, but when it comes to acquiring public lands, setting aside areas for habitat and recreation in a state with a booming population, they're the go-to for grant making.

>> Mr. Hedden: RCO is a small state agency that gives grants to local governments, tribes, nonprofits, and state and federal agencies.

We fund recreation opportunities such as trails, parks, boat launches, firearm and archery ranges.

We give grants to preserve wildlife areas and our working farms and forests.

We give grants for salmon recovery.

We coordinate the Washington Invasive Species Council which is tasked with making sure that invasive plants and animals don't establish in our state.

And we also get money from the state legislature -- quite often -- to do additional plans, studies, and other policy coordination.

>> Tom Layson: Brent Hedden is the IT manager who was tasked with taking a blizzard of data from Fish and Game, Natural Resources, Parks, and others and turning it into a public-facing interactive map that reports out public lands location, costs, classification, and everything else.

So now everybody can see it, understand it, and evaluate how it all fits into the state's conservation plans.

>> Mr. Hedden: The public cares about this data so much because they -- they love to recreate outside, and this tool allows them to see who the landowners are for the public lands and leads them to where they could go find additional information such as allowable recreational uses, any fees associated with recreating on those lands.

And people want to know what their government is doing and this tool gives them that information at their fingertips.

>> Tom Layson: RCO's mandate was to make the data available to lawmakers, but the department decided, instead, to spend three years to make it an interactive, real-time, online tool in the interest of transparency.

And that's why the department received a Key Award from the Washington Coalition for Open Government.

So now the map is right there for all to use, and Hedden says the feedback from other agency users, lawmakers, and the public has been good.

>> Mr. Hedden: There's a lot of information that the public can get from the website.

They can see which agency owns the land, how many acres, the date of the acquisition, as well as how much was paid for that particular acquisition.

>> Tom Layson: To see that public lands map, just go to rco.wa.gov and under the "What We Do" tab you'll find the link to reports and studies.

It does take a little digging.

To continue our discussion about open government, in the interest of full disclosure, I want to share that I am a member of the Washington Coalition for Open Government.

Joining us now is the President Emeritus of the Washington Coalition for Open Government, Toby Nixon.

Toby, welcome back to Northwest Now.

Great to have another conversation this year about open government and open public records like we do every year.

I've kind of broken this down into a conversation about the good, the bad, and the ugly, so we'll start with the good.

And that is, you know, this possibility of remote testimony in the legislature.

I don't know how lawmakers feel about it and I'm going to ask Gerry Pollett about that, but it does seem to be a -- a move toward democratization.

What are your thoughts about it?

>> Mr. Nixon: Well, obviously it has its good and its bad points.

The good points, I find, are that people can testify and at least be seen and heard by their legislators without having to take a whole day to drive across the state and maybe get stuck in the snow in the mountains -- just to find out that -- once they get to Olympia -- the bill has been removed from the agenda.

Right?

It can be very frustrating and expensive.

But -- but it's better than just sending a -- a letter or an email to your legislators.

On the -- on the other hand, the -- the number of people who are signing up for some hearings has been huge and so only a small portion of them get to speak.

The legislators hear the numbers of how many people signed up, but the impact is not nearly the same as seeing a room full of people, and seeing that room full of people's reaction to the things that are said.

And I know that people really miss being able to confront their legislators in person, you know, face to face -- make them listen.

But the fact is the number of people who were able to do that was pretty small anyway just because legislators' calendars are so full.

And so, on balance, I think that it's positive.

It's a great equalizer.

People who can't travel to Olympia because of work or family responsibilities can still testify.

People in Point Roberts or Metaline Falls or Walla Walla can still testify.

People with physical disabilities and multiple chemical sensitivity can still testify.

And I -- I actually feel like it equalizes the people with the professional lobbyists a bit more because a lot of the legislators aren't in Olympia.

They're not getting grabbed by the lobbyists and it's kind of -- they're kind of equal.

>> Tom Layson: Is this wishful thinking on my part, very possibly -- quite frankly?

But I'm wondering if this situation with COVID is maybe alerting local jurisdictions, not necessarily the legislature that's well covered, but other smaller local taxing districts and jurisdictions that listen.

Having this kind of infrastructure is important.

It is democratizing.

It can be helpful and useful.

Am I just wishing for something that's not going to happen, or what are your thoughts on that?

>> Mr. Nixon: Well, I can tell you, then, the city on which I serve on the City Council -- Kirkland -- we have already made the decision that we're going to continue to allow remote testimony, like for public comment periods and public hearings.

For all the reasons I just listed, it enables a lot of people to participate who otherwise would not be able to get down to City Hall, maybe because they -- the bus routes don't run that late in the -- in the evening.

And -- and I would hope that other agencies including local governments would -- would do the same.

>> Tom Layson: Now we're going to move into the bad section.

You've seen the coverage on this as -- as I have as well.

These zombie records requests.

Unresponsiveness is kind of the new normal right now.

Do you feel like COVID is a reason for this -- a legitimate reason for this -- or is it an excuse for poor performance and a lot of agencies and other records keepers finally, kind of, getting an excuse to deny the records they always wanted to deny anyway?

Am I being too cynical?

>> Mr. Nixon: I don't think you're being too cynical.

I think there are agencies -- and we heard about them through the Washington Coalition for Open Government -- that are just taking advantage of this and the Governor's orders to slow down the release of politically embarrassing records.

Right?

And what we're seeing are just completely arbitrary delays.

And -- and to some extent they could be understandable if you were talking about paper records that had to be physically accessed and photocopied.

But the vast majority of public records are borne electronic today and there's no reason why emails and other types of electronic documents can't be searched for remotely by a public records officer and produced electronically without any unusual delays at all.

>> Tom Layson: Here's another piece of the bad that comes out of the headlines, and that's the situation, you know, with big hacks like the one that happened at the Employment Security Department.

Do you think that that is going to provide somewhat of a rhetorical platform going forward, where agencies can say, well, listen.

If we're too open, look at the kinds of things that could happen.

We don't want to be another ESD.

I worry about that.

What are your thoughts?

>> Mr. Nixon: Well, I think that, first of all, ESD was not a hack.

Those people from Nigeria or wherever it was who stole hundreds of millions of dollars in unemployment benefits came through the front door.

Right?

This was not a cyberattack.

This was people using the normal public mechanisms for applying and getting away with it.

And that's inexcusable.

The thing that happened with the State Auditor, on the other hand, where some of this data about the Employment Security Department was hacked through a vendor, that was sincerely a hack.

And -- and -- and so there are issues about disclosing the methods that were used to hack.

Like, if you -- if you want to hold them accountable, you need to find out what went wrong and plug the holes and make sure.

But if you disclose the details of that, it could enable other hackers to do the same thing or to do the same thing to other agencies.

And so I -- I can support the idea that the details of the security mechanisms of an agency's computers or networks should be confidential.

But there's a huge amount of information that they are hiding because it's politically expedient to hide it.

And -- and to even imagine going back and saying they hid politically embarrassing records during a political campaign -- and that's really the essence of what the Public Records Act is for is to be able to hold elected officials accountable for their actions.

>> Tom Layson: So speaking of accountability, here's one of the strange quirks of this whole open government situation.

If a -- an agency or a government is nonresponsive and they get sued, it's the people who are doing the suing who end up paying for the defense [laughing] of the agency that's been withholding the records.

It's very circular but taxpayers ultimately end up paying, would have been over the past couple of years, some massive fines for cities and counties and towns and other jurisdictions, taxing districts, not -- not being forthcoming.

With that said, are you a little concerned at all that cities and towns are putting themselves in the sights right now of serial requesters who make -- let's face it -- make some money suing and collecting because of unresponsive requests?

Are -- are -- are we vulnerable as taxpayers because of this phenomena right now?

>> Mr. Nixon: Yeah, it's especially true with very small agencies who don't have in-house counsel on salary and -- and what we see are a lot of the smaller agencies that have outside private counsel are settling a lot of these lawsuits because it would be more expensive for them to actually go to court.

And -- and the problem is that if they were to -- if they would just admit that they were in the wrong and -- and say we made a mistake, here are the records you asked for, instead of fighting it, then they would not have those large legal bills with outside counsel.

And -- and that's why these settlements end up being made.

And -- and I think that if we had more of the -- admit you were wrong -- the fact that is -- is that the Public Records Act allows a court to issue zero penalties.

But they don't really get the opportunity to do that because of the settlements that are going on.

So I think there are issues with a bunch of private attorneys who work for agencies getting wealthy off of the Public Records Act on the defense side.

>> Tom Layson: Yeah, through the non-responsiveness of the agencies and the entities that they represent.

Like I said, it gets very circular.

>> Mr. Nixon: Yes, absolutely.

>> Tom Layson: Toby, I appreciate you coming to Northwest Now for our annual discussion here on open government and public records and open public meetings.

It's an important topic and I appreciate your input over the time.

And I should mention, too, you're now the President Emeritus of the Washington Coalition for Open Government, so enjoy life in Hawaii, I guess.

>> Mr. Nixon: Haha!

Thanks very much, Tom.

It's great to see you again.

>> Tom Layson: You already watch Northwest Now on television Friday nights at 7:30 on KBTC, but did you know full episodes also stream on the Northwest Now tab at kbtc.org?

That's also the place for our digital first and digital extra features.

More coverage of the issues and people of Western Washington.

On social media, just search Northwest Now and be sure to subscribe.

Northwest Now digital first and digital extra on the air, online, and your mobile device.

To continue our discussion about open government, it's 46th District Representative Gerry Pollett, a long-time advocate for open government.

Representative Pollett, great to have you on Northwest Now.

Long-time advocate for transparency in government, open public records, open public meetings.

Let's talk about the big picture first.

You know, COVID is impacting everything.

How, in your estimation, has the pandemic impacted the concept of open government?

>> Mr. Pollett: For good and for bad.

There have been many agencies that, as I like to say, use the cover of COVID to try to hide what they were doing or to move meetings online without public access to them.

On the other hand, I think Washington State in general has done quite well and, starting with the Governor's proclamation, he reached out, involved the Coalition for Open Government and myself and others in trying to make sure that when you have to go to remote meetings because of an emergency, you also have to be open.

And that was kind of groundbreaking.

We looked around the United States and we saw all these gubernatorial proclamations to say, oh my gosh, local governments, state agencies, need to keep meeting and, sure, we're going to authorize you to meet online with your own link and no one has to see what you're doing now.

In Washington, we took a different approach and I'm really thrilled.

And then we've tried to put that into ongoing legislation.

The flipside, of course, is that there is no replacement for some of the interactions that happen between public officials and the public, or the public and the public, when you're trying to do public meetings.

And often it gets lost that the agencies -- a lot of them -- I got a number of emails from agencies saying can you -- we've had more people tune into our meetings or offer comments than ever before.

Can we just keep doing this?

And what they forget about is that they've no longer got contact directly with the members of the public at the back of the meeting room.

And the public doesn't have contact with other members of the public.

>> Tom Layson: So what are some of the -- some of the ideas that you have legislatively?

Maybe give us a rundown on some of the -- the things that you're proposing and some of the legislation that's out there right now.

>> Mr. Pollett: Well, the most urgent legislation we had is to -- to get off of a gubernatorial proclamation and with House Bill 1056, which is over in the Senate and I hope will become law very quickly, it basically says let's put in place permanently what we put in place for the pandemic emergency.

And we realize -- we started writing a bill about replacing the gubernatorial proclamation for the pandemic and realized very quickly, well, what happens when there's a wildfire and it shuts down the ability of local government to meet -- or a snow emergency?

And we found, lo and behold, that the Open Meetings Act hadn't been updated in 40 years for emergencies.

And we said, okay, well, let's update this.

Now you can meet remotely.

You've got to have that public ability to -- and the media ability -- to see you operating in real time.

There's something else.

How does the public know?

Now you are going to have to put on a website the notice of your special emergency meeting.

And we're actually reforming it to say you should actually have a website for your regular public meeting notices as well.

And some of the agencies said oh, whoa, whoa, whoa!

We're too small.

The current law said you didn't have to have a website for notice of your meetings if you had less than ten employees.

Well, that was a small -- you know, websites were expensive in the year 1995.

Now for 200 bucks a year, you can do it and you can have your highschool student post stuff for $100 a year.

So there's no excuse.

So we're reforming this and saying none of this "you've got to have ten employees."

If you -- unless you're going to spend more than one-tenth of one percent of your budget for -- and you are under 3,000 population and a few other things, you're going to have to have a website.

You can share it with the local county or the fire district next door to you.

You've got to have a website for people to look at for your notices.

>> Tom Layson: Thirteen twenty-nine also dealing with emergencies.

Are -- are those -- are the -- are -- are 1056 and 1329 kind of compatible or companion bills?

Set me straight.

>> Mr. Pollett: Well, they're -- they're kind of both stemming out of visions about the pandemic.

And really, what we have with HB1329 -- there was another bill so we have -- 1329 is from Representative Wicks and another bill from Representative Kraft from Vancouver.

And we try to work altogether and their vision was -- let's do all meetings online.

And when we looked at this, we ran into, you know what, it turns out that the quality of public involvement actually dropped.

The quantity may have increased but quality dropped.

And we're not ready to go to every meeting online.

But with 1329 we are encouraging things like, hey, you should broadcast your meeting all the time if you can.

And the technologies -- that we're going to encourage you to do that.

And we're going to, for the first time ever, the Open Meetings Act is going to say when you have your regular meeting you should take public comment in some form.

And that's -- I know it sounds like, well, isn't that obvious?

But we've had scandal after scandal involving these special purpose districts where there was no notice of their meetings and they never took public comment.

And now, for the first time, people are going to have notice and this is how the two fit together.

Notice from 1056 and then the requirement that you actually take public comment, even if it's written, from 1329.

>> Tom Layson: Well, you've articulated a couple of the countervailing forces that I see here.

Certainly, agencies and taxing districts and -- and entities have -- have, I think, to some degree used COVID as an excuse to realize their anti-disclosure dreams to some extent.

But I also have hope for the future, too, that maybe this will spark a new round of innovation, a new round of regulation, and a new round of openness because of the investments that might -- might be made in some of that infrastructure and some of that -- some of that transparency.

One of the big issues and one of the big areas that might be impactful is in the legislature.

You're experiencing that right now with a virtual legislature.

Is remote testimony here to stay, do you think?

And how much testimony is too much testimony?

>> Mr. Pollett: Well, I'm hopeful that it might be here to stay in some form.

Last year the house reluctantly tried an experiment and asked committee chairs to volunteer to take remote testimony, and only three of us -- I was one of three who volunteered to take remote testimony.

And there was obstacle after obstacle about how you had to go to -- you know, you had to show up at Bates Technical College or Spokane Falls Community College to sit in a room by yourself and wait an hour to testify for two minutes, and that was it.

It was -- there were obstacles and we said this is kind of crazy.

And we were told, oh, this is the way it has to be.

Now we're taking testimony every day, fifty times a day, in different committee meetings on platforms that work.

And constituents can weigh in.

And it turns out that, just as with any other real in-person meeting, the committee chair still gets to say we're hearing from twelve people for two minutes each and then we're moving to the next meeting.

>> Tom Layson: Well, let's hope that -- that some of these reforms and some of the things that have proven to be effective and to work stick after COVID.

And I know, Gerry, you'll be one of the people that's out there working on that issue and looking for ways to make government more transparent.

I do appreciate you coming to Northwest Now for this program we do every year -- an important issue -- and keep up the good work.

>> Mr. Pollett: Thank you, Tom.

See you again soon.

[ Music ] >> Tom Layson: Let's face it.

There's a great temptation to describe how things are now as "the new normal."

The bottom line?

We're going to get what we're willing to accept.

Will you accept poor customer service, low inventory, and generally sloppy work from now on?

If so, that is going to be the new normal.

But I suggest we need to get back to high performance and high standards immediately, and that includes in the enforcement of open public meeting standards and the execution of public records requests.

Our now obviously fragile democracy depends upon it.

I hope this program got you thinking and talking.

To watch this program again or to share it with others, Northwest Now can be found on the web at kbtc.org and be sure to follow us on Twitter at Northwest Now.

Thanks for taking a closer look on this edition of Northwest Now.

Until next time, I'm Tom Layson.

Thanks for watching.

[ Music ]