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>> Tom Layson: As Seattle fell during the previous mayor's so-called Summer of Love, text communications between the city's leadership team flailing to manage it all went missing, a flagrant violation of the State's Public Records Act.

That's just one example of some rather egregious violations of your right to know.

And that's the discussion tonight on Northwest Now.

[ Music ] If you've ever wondered why I do this program every spring in advance of Sunshine Week, this year's program should answer your question again.

Sunshine Week, by the way, is the annual recognition of the vital importance of government transparency launched back in 2005 by the American Society of News Editors, this year's festivities such as they are, start this coming Sunday.

So, what happened this past year, you might ask?

Well, the Employment Security Department was overrun by fraudsters in 2020.

But it wasn't until July of last year in the settlement of a lawsuit that it was finally able to provide the public records required to investigate the loss of $600 million.

In the Seattle Mayor's Office, text messages went missing in 2020, but an ethics investigation in 2021 Finally dinged ex-Mayor Durkan and several of her minions for violating the State Public Records Act.

Those texts are still missing.

Also last year, the City of Tacoma finally paid $311,000 to settle a lawsuit over a public records violation that has been disputed for five years, and involved records detailing the use of a police device that basically collected personal cellphone information in certain circumstances.

And the final icing on the cake for 2021 was the action of the once a decade Washington State Redistricting Commission that basically operated in secret during the most crucial moments of its deliberations, also losing yet another in a steady drumbeat of lawsuits trying to get people who allegedly operate in the interest of our democracy to follow the rules.

You should know that anytime a state or local government defends a lawsuit, or pays a fine or settlement for violating the Public Records Act, or the Open Public Meetings Act, you pay the freight.

A quick second here now for some disclosure.

I am a member of the Washington Coalition for Open Government.

All right.

Joining us now are Mike Fancher, Former Seattle Times Editor and the President of the Washington Coalition for Open Government.

Joan Mell, a Washington Coalition for Open Government Attorney who represented the coalition in the Redistricting Commission lawsuit among others.

George Erb, a Washington Coalition for Open Government Board Member, and a longtime journalist and journalism instructor here in Western Washington.

And Cali Ellis, a member of the Northwest Now Election Coverage Team and a public policy professor at the Evergreen State College.

Welcome all of you to Northwest Now for our annual conversation about open government.

Mike, I want to start with you.

The Washington Coalition for Open Government just won a big settlement in the case of the State's Redistricting Commission.

Give us some background as to what went wrong with the Commission, and then what the basis of that complaint was.

>> Mike Fancher: Well, I think what went wrong all happened one night, basically a 24-hour period.

The Commission met.

It was supposed to meet publicly, discuss the plan for redistricting, adopt a plan.

And instead they met, they went behind closed doors, they came out just before midnight, which was their deadline, announced that they had a settlement, but they didn't have any settlement to show anybody, announced that they had maps, but they didn't have maps to show anybody.

And it was pretty clear that they had violated the law, the Open Public Meetings Act, in the way they had gone about reaching the conclusions that they did.

And the coalition looked at that and thought this can't be allowed to stand because it sets a precedent that would be very bad for the state in terms of holding private meetings, serial meetings.

It seemed like they were deliberately strategizing to not let the public know what they were doing.

And so, after the Supreme Court ruled that, in fact, what they did was acceptable, at least in terms of missing their deadline, they also missed their midnight deadline, the court said, "We're going to accept it anyway."

That's when we made the decision that we had to take it into court.

And that's what the coalition is here for, because when nobody else represents the public on accountability and transparency, that's when we step in.

>> Tom Layson: Joan, you litigated this lawsuit against the Redistricting Commission.

Talk to me a little bit about how it turned out, and most importantly, how it may reform things or make some changes that are meaningful in the future.

>> Joan Mell: Well, we're really pleased with the ultimate outcome.

It took a while to get there, but we got there, and have now a consent decree signed by a Thurston County Superior Court Judge, which, in essence, is a proclamation for everyone to look at and go back to, historically, it sets forth the chronology of what was done with a list of do's and don'ts that make it obvious that this secret negotiation process, and dyads, and caucuses, done, can't do that anymore.

Come out here in the open.

Talk to all of us.

Let's see what's on the table.

No secret meetings.

>> Tom Layson: After we run down the aisle, I want to ask you all the question about how that's even possible to happen that way in 2022.

But I digress for a moment.

So, George, I want to play devil's advocate here.

So what if boards and commissions operate behind closed doors and set the districts for voting here in the State of Washington?

Journalists, after all, are just nosy.

They goof up the process.

And aren't they more of a problem than they solve?

>> George Erb: Well, we need to have a free press out there that could gather information and tell the public what's going on.

That's what journalism is all about.

So we have an informed citizenry that can keep tabs on its government.

Ro kind of circle back on the Redistricting Commission, you know, Joan talked about how, you know, we took them to court, and the Commission was basically rebuked with a consent decree.

And, you know, they needed to be reviewed.

You know, in our form of government, you know, the public is the highest political authority.

And it oversees the government.

So citizens have to be able to see what their government is doing.

And that's exactly why the Open Meetings laws are on the books.

>> Tom Layson: Cali, this brings up a broader question about the Redistricting Commission itself.

It's seen across the country as being a model where we have both parties are participatory, and it's supposed to be open.

And it's really set as an example of how things are supposed to be done.

I thought this back the last time this was done 10 years ago when a new district was basically carved out for a known individual, as coincidence would have it.

Does this gesture, though, at a deeper problem with the Commission structure itself, are reforms needed to keep us from basically having, again, both parties in a semi-smoke filled room deciding these things?

>> Cali Ellis: Yes, Tom.

I mean, this is a really interesting case, because, yes, Washington is clearly better than other cases where there's a lot of clear gerrymandering.

And this came from a citizens' initiative long ago.

However, even then, Crosscut did a recent public records act request, and they found messages where the people on this commission were trying to talk about carving up district to protect different legislators and percentages and whatnot.

And that's really against the key point of what this is supposed to be.

I think a lot of the reforms are about transparency.

And so, that's where you start to see things in the legislature, or even models from other states.

For example, the Michigan Citizens Redistricting Commission, which is made up not by people from parties, but from regular citizens chosen by a lottery.

>> Tom Layson: This is an all skate here, and whoever -- we can have a couple of answers on this.

I don't know if I'm naïve, but how is it possible in 2021 with all we know about the OPMA, and the Public Records Act, and Washington Coalition for Open Government, it's not a secret that this is supposed to not be secret, if you will.

How does this happen?

Mike, is it -- do they just lose their senses and decide to be expedient?

I just don't get it.

>> Mike Fancher: Well, for one thing, they're supposed to be trained -- >> Tom Layson: Yeah.

>> -- in what the law says.

And they didn't have their training.

They didn't complete their training.

So right out of the gate, they had problems, right even to the very end, because after their lawyers had agreed to the consent decree, and they took it to the commissioners to approve, they went behind closed doors, had their conversation, came out and announced that they were going to vote on it.

They didn't present what it was.

They didn't show it to anybody.

They did the same thing that they did on November 15th when they adopted the plan.

And so, I think that the problem with this is their politics were driving it.

It essentially was an agreement between the two parties.

It was not nonpartisan, it was bipartisan.

And once the parties were happy, then they were done.

And I think that's a huge problem.

And I'm with Cali.

I think we -- that needs to be addressed in the -- >> Tom Layson: Joan, here's a fact that I want you to hit because I know you must look at this as I do and shake your head.

These cases are litigated with taxpayer money.

>> Joan Mell: Right.

>> Tom Layson: They're settled, and fines are paid with taxpayer money.

It seems like there's a certain person kind of on the short end of the stick of this whole thing.

>> Joan Mell: What?

You and I, the taxpayer?

Yeah.

And it's the thing that I'm certainly cognizant of going into these kinds of cases.

And I think I told these guys, you know, I'm not in it to get paid attorney's fees.

Let's get the problem identified, and articulated, and spent a lot of my time early on.

I prepared a consent decree that was there for their consideration before I took one deposition.

So, it's an interesting dynamic when you go into litigation.

There's -- I think there's fear, and there's ego.

You don't want to be wrong.

You want to take every opportunity to believe that you are right.

And the great equalizer is sitting down in a deposition.

Just like you put me on the spot here, I put members on the spot when I ask them the question.

It's the first time they really have to sit there and face what their actions have been.

And I say digital technology and texting has become -- instant messaging has become sort of the negotiating tool that people think is secret, but it's not.

And so, when confronted with what their words say versus what they intellectually thought they were doing, it collides.

And so, then it comes out.

>> Tom Layson: George, one of the other interesting things along with the taxpayer pieces, the journalism piece, in which journalism -- journalists are trying to get access to the information, but are also the ones frequently, not in this particular case, but bringing the litigation.

And so, you almost have this kind of circular relationship between a transparent government and journalists, who are, not only covering the story, but sometimes their parent companies are suing.

So that that long explanation brings me to this line between reporting and activism.

And where is that important?

And does the activism piece kind of become more important when we're talking about something so vital to democracy?

>> George Erb: In newsrooms, Tom, there's a separation on the reporting scale.

So, the people who are gathering the information, they're doing the interviews, getting the documents, are frontline reporters.

And that's all they do.

But they're not the ones that are calling up the attorneys and saying, "What are our litigation possibilities here?"

They're not the ones who do that.

Those would be the editors, those would be the executives in media organization.

So there's a separation.

So that, basically, it's ethically clean because reporters are not in a position where they're also deciding whether or not they want to sue their source that they're looking at.

That's a job for their bosses.

And so, that way, reporters can just basically keep it simple, keep the relationships simple, and just get the information that they need to be able to get as close to the truth as possible until the public.

>> Tom Layson: So there's a process in which the reporter say, went behind closed doors at midnight with no word of anything, and management's looking at that story and say, "Now, wait a minute."

Is that an accurate description of how it might work?

>> George Erb: Yeah, that's exactly the way it works.

I mean, there's a there's a case that's been going on just recently up in Everett, where a reporter asked for a report on an C executive who'd been fired.

And the C said, "Can't have it."

Or that's not quite right.

They gave the report to the reporter, but it was almost entirely redacted.

>> Tom Layson: Right.

>> George Erb: So the paper challenged that.

It was not the reporter who did the challenge, it was the newspaper, you know, the editor who did that.

So that's basically how you can sort of separate those duties and keep the reporters from being on the front lines of working with the attorneys.

>> Tom Layson: And just so folks, no, I saw that.

And it's page after page of looks like somebody took a black felt pen and just lined out everything.

I mean, there's a salutation and maybe a date at the end, and that's about all it is.

Yeah.

>> George Erb: Yeah.

Crazy, right?

>> Tom Layson: Yeah.

Cali, I wanted to ask you the same question about how this is possible in 2022.

You're a political scientist.

You look at the process, you look at the people involved in that process.

And again, feel free to call me naive.

It seems like if you go to elected office in this country, and particularly in Washington State with its long and rich history of transparent government, it wouldn't occur to you, it doesn't seem to me, to go behind closed doors and violate the process.

So what is happening here?

Where's the gap?

Is it all text and social media, or is there something more fundamental happening?

>> Cali Ellis: Yeah.

I think, you know, what's happened with the Redistricting Commission is really an example of other things that are happening at different levels of government from local all the way up to state.

And, unfortunately, transparency isn't really given the priority that it's supposed to have.

And that speaks to both the media and the free press, and also the public's ability to get involved and learn more about the process.

I mean, there's a really interesting example from the legislature since they went online.

So TVW doesn't normally broadcast the Rules Committee, but the Senate last year decided to make the Rules Committee broadcast for the first time ever.

Everyone can watch it.

The House did not make that same decision.

>> Tom Layson: Yeah.

And I think remote testimony and feel of those other things.

You know, there may be an upside to COVID.

And I think some of those ideas may be a piece of that.

Mike, tough question for you, election doubters in this particular round are just apparently shelling county auditors, not only in Washington State, but all across the country with records requests about a bungled election.

There is a dark side to this whole thing.

And I want to talk to you a little bit about the problem with gadflies who attach themselves to what I would call legitimate requesters, and weaponize Open Government and the in the Public Records Act.

How do we get that right and not let -- not get taken down by that phenomenon?

>> Mike Fancher: We get it right right out of the gate by keeping the records, organizing the records, and making them available.

What happens is when government responds by saying, "Well, who are you, and why do you want to know?"

That's not a fair question under our law.

And so, the public officials are getting themselves in trouble, and it's happening in virtually every kind of jurisdiction, because they won't simply provide the records that the requester is entitled to.

The Coalition, the Washington Coalition for Open Government, wants to work more with governments to help them figure out model rules so that they don't find themselves behind the gun on having to pay big fines and penalties.

So, get the records, have a philosophy of openness, make it a function, basic function of government.

And when somebody asks for something, if it's something they're entitled to, make it available.

Put it online, make it available.

If there are 50 requesters because they have some agenda, then, once you have it, give it to everybody.

I think that would go a long way toward stopping the concerns that people have about, you know, who the requester is, and what their motives are.

>> Tom Layson: And that's something I've been talking about for a long time is just because you don't have any PRA records requests in front of you doesn't mean it's not time for you to be digitizing, organizing, and uploading your content.

>> Mike Fancher: Right.

>> Tom Layson: That's the time to do it.

>> Mike Fancher: And you do it for the benefit of the elected officials, too.

I mean, often what happens is, there'll be some contract and the elected officials find out they're way over budget, and nobody told them because there isn't this accountability built into the system.

>> Tom Layson: Joan, you talked a little bit about social media, texting in particular, and that of course, brings up Seattle Mayor Jenny Durkan in the missing texts there.

This seems almost typical to some degree.

It's a pretty egregious example of it.

The texts are still gone, and her minions who should have known better were actually involved in this, which again is -- >> Joan Mell: What's happening here is happening in Tacoma.

Pierce County Sheriff's Department, Paul Pastor's phone disappeared, his text disappeared.

He's got deputies and higher up in the echelons whose phones, when they get a public records request, all of a sudden, they need a new phone.

Oh, well, where did the old phone go, and where did the text go?

And texts are weird mental universe for people.

They think it's secret.

>> Tom Layson: Yeah.

>> Joan Mell: I mean, they think they're making a call.

I mean, one of the other attorneys who's a longtime attorney, who's got the gray hair like me in the depositions, we were just kept going through, wading through all these texts and instant messaging, and it's getting so prolonged.

And I joshed at them and I said, "Well, do you remember the old days when we just had paper?"

And he goes, "Yeah.

And why did they have to write down everything they think?"

>> Tom Layson: Yeah.

>> Joan Mell: And I said, "Yeah, that's it."

Your written communications are revealing.

But I think it's important in the sided universe we're living in now that you remember, caucuses aren't public.

So that whole process they've opened up in the legislature, these are people who are used to being able to identify who they can talk to secretly and do those discussions, and then come out with a position later.

So, part of what we're seeing, and why it's happening, in answering the question about why in this day and age is everything's secret, or why do people believe they can be secret, and the answer is, because they have to pick sides.

And they want to go get their sides coordinated.

And they think they can.

>> Tom Layson: Yeah.

>> Joan Mell: They still think they can.

>> Tom Layson: And I often kind of never really grasp the idea why it's not OK to have an open debate.

Why it's not OK -- >> Joan Mell: I don't either.

>> Tom Layson: -- to share your concerns.

>> Joan Mell: Right.

>> Tom Layson: But, you know, after weighing it, I got to think this way.

And maybe I'll turn out -- you know, I might turn out to be wrong, but this is what I'm thinking.

I don't understand why that level of transparency doesn't just come along with being a lawmaker.

>> Joan Mell: Well, see it last night, the Redistricting Commission's meeting where they're responding to the Voter Rights Act case, and the named parties are opting not to defend, and there's a motion before them to the folks who are very vocal and say, "This is why we want it."

And the other two are silent as mice.

Well, they said, "Well, we kind of agree with them, but we know we're not supposed to say anything."

So they don't even vote.

They don't even articulate a side.

>> Tom Layson: George, you have a pretty big role obviously in teaching journalism.

This whole digital piece, and text messages, and communications is a lot different than sort of the old shoe leather model.

You marched down and talk to then, you know, ask their mom.

That doesn't really work anymore with a lot of this communication and a lot of this technology.

Is there a way to teach that, this deep dive digital piece in journalism school?

Or what does that look like today?

>> George Erb: We still -- I mean, we still talk to students about how you have to go out, and whenever possible, talk to people in person.

Establish the relationship, right, because so much of reporting is about relationships.

So, we're still very much into that.

Now, to kind of go back and touch on what Joan said, with text messaging, email, all this digital communication, what that's done is that's created a whole new category of public records.

>> Tom Layson: Right.

>> George Erb: Because as long as that text message, that email, whatever it is, no matter which device, it's on, my cellphone, my work computer, at the university, whatever, if that has to do with the conduct and performance of government, and I'm doing it on the job as a government employee, that means that it's under the Public Records Act.

And so, in a way, you know, I mean, reporters still have the old shoe leather being able to talk to people in person, on the phone, but there's also this enormous amount of information -- >> Tom Layson: Yeah.

>> George Erb: -- that exists out there in the form of emails and text messages.

And I can't begin to tell you how many important stories I've seen broken in recent years because reporters have put in public records requests for text messages and emails.

And that's one of the -- >> Joan Mell: Instant messaging now.

>> George Erb: And instant messaging.

>> Tom Layson: Yeah.

>> Joan Mell: That's a big -- >> George Erb: Thank you, Joan.

>> Joan Mell: -- component of it now.

>> George Erb: Yeah.

Exactly.

>> Joan Mell: It's changing.

>> Tom Layson: And it's so handy.

>> Joan Mell: Well, I don't know.

>> Tom Layson: For better or worse.

>> Joan Mell: There's a generation.

My kids, 25,26, they won't pick up the phone if -- >> Tom Layson: Yeah.

>> Joan Mell: -- you know, to make a call.

They won't answer the home phone.

I still have landlines.

They won't answer it.

>> Tom Layson: Call your mother -- >> Joan Mell: Because that's a bad thing.

>> Tom Layson: -- is that what I'm hearing?

>> Joan Mell: Yeah, yeah.

Well, I'll text her.

Yeah.

And then, they don't imagine that that's interpreted differently.

They just think that's their momentary communication.

>> Tom Layson: Cali, I saw you shaking your head vigorously about the education piece, you on the political policy side.

And how is teaching changed in regards to this issue in your tenure?

>> Cali Ellis: Yeah.

So I do teach class on legislative policy.

We're wrapping up right now.

And we have really appreciated what TVW provides in terms of transparency.

This really is unique amongst the states.

And I hope that the people of Washington appreciate the ability to be part of the conversation.

And as you mentioned, Tom, earlier, there is remote testimony.

So that happened because of COVID.

But I don't think there's any way for the legislature to undo that.

>> Tom Layson: Yeah.

>> Cali Ellis: So even when you all come back in person, there are still going to be people doing remote testimony because it opens up the process to so many more people that can't physically get to Olympia.

And kind of changes the dynamic.

So we'll see how that goes going forward.

>> Tom Layson: Open question here.

Anybody can address that.

What were you watching this year in the legislature that might be transformative?

>> Mike Fancher: Well, we are we always fight a defensive battle -- >> Tom Layson: Yeah.

>> Mike Fancher: -- in Olympia.

It's not like we're trying to get good laws passed.

We're trying to make sure bad laws don't get passed.

>> Tom Layson: More exemptions.

>> Mike Fancher: So more exemptions.

So what we do is we try and scour the legislation, see wherever there's a proposed exemption, and then bargain, negotiate, you know, try to educate people on unintended consequences.

Typically, a bill will say, "This could happen, and that would be bad.

Therefore, we needed an exemption to make sure it doesn't happen."

And what they fail to see is when you put that exemption, and then all kinds of other bad things happened in terms of accountability.

>> Tom Layson: One of them discussed this year was the juvenile 911 calls.

>> Mike Fancher: Yeah.

Yeah.

That would be an example where good intentions, but bad outcomes.

And so, that's what we do is we basically try to narrow the exemption to a specific problem, and solve that problem.

Because often, as I say, there's some good reason to do this.

But that's a tough process to work through.

>> Tom Layson: Any other legislation being looked at, yeah, Cali?

>> Cali Ellis: Yeah.

I can tell you what I'm watching.

So in 2020, there was engrossed Substitute House Bill 2575.

This was Representative Pellicciotti's bill.

This was something that was crafted before the census with a lot of input from the League of Women Voters to make the Redistricting Commission much more transparent, much more open, much more well-funded.

And that died right at the end.

So that's why we sort of were stuck with what we had before.

There is a bill, Senate Bill 5560, from Senator Peterson that is trying to make some of these incremental changes in the redistricting process.

For example, make it more transparent.

Don't have this last minute, midnight meeting.

People -- They need to put -- >> Tom Layson: To have some benchmarking in there.

>> Cali Ellis: The benchmarking, including the maps -- >> Tom Layson: Yeah.

>> Cali Ellis: -- being released earlier, the ability for public comment.

It's just a little bit incremental.

It's not the reformation that I think some groups want, but it's something and better than nothing.

>> Tom Layson: Last question, and George, you haven't talked in a while, so I'll pick on you.

Ultimately, optimistic or pessimistic about the uptake, if you will, like a vaccine, of a reverence for open public meetings and public records.

>> George Erb: Where I really take hope is that every time, this doesn't happen very often, but every time that there's a poll of the public to gauge their sentiment for open government, the public is usually overwhelmingly in favor of it.

This can show up sometimes in polls, sometimes in referendums.

But that's been consistent for decades.

>> Tom Layson: Great conversation.

Thanks all of you for coming to Northwest Now.

>> Cali Ellis: Thank you.

>> George Erb: Thank you.

>> Tom Layson: As this country descends into what I've previously called prison yard politics, where otherwise reasonable people are excluded from a process that increasingly only caters to the extremes on both sides of the political spectrum, the absolute necessity of an open and transparent government is more important than ever.

The bottom line, it's going to be up to lower level bureaucrats, open government advocates, journalists, the courts, and the still silent sane middle of the body politic in this country to enforce that transparency.

It shouldn't have to be that way, but for now, I'm afraid it is.

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 NorthwestNow.

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

Until next time, I'm Tom Layson.

Thanks for watching.