Every year at this time, government transparency advocates celebrate “Sunshine Week” by highlighting the importance of public records and open meetings laws in holding government at all levels accountable.
Washingtonians have much to celebrate. The state’s robust Public Records Act (PRA), passed by citizen initiative in 1972, is one of the nation’s strongest.
Yet every year, legislators and special interest groups chip away at the PRA and further limit the information that must be disclosed to the public. The recently concluded 2020 legislative session was no exception.
House Bill 1888, backed by government labor unions, passed by healthy, bipartisan margins and presently awaits Gov. Jay Inslee’s signature.
The substance of the bill involves limiting public access to government employees’ dates of birth. Described by its supporters as necessary to protect public employees from harassment and identity theft, the bill’s actual purpose is to limit the Freedom Foundation’s ability to communicate with public employees about their right, recently acknowledged by the U.S. Supreme Court in Janus v. AFSCME, to stop the deduction of union dues from their wages.
Current law already exempts most personal information about public employees from disclosure. However, the names, dates of birth and mailing addresses of all registered voters in Washington are freely available. Accordingly, the Freedom Foundation uses public employees’ names and dates of birth to match individual public employees to registered voters, identifying their mailing address in the process.
That’s why union-backed lawmakers singled out complete dates of birth for exemption from the PRA, despite the lack of any evidence that the disclosure of public employees’ dates of birth has ever been used for nefarious purposes.
Fortunately, even though Gov. Inslee will presumably sign the bill into law, the Freedom Foundation remains able and equipped to continue its efforts to assist government workers in learning of and exercising their rights.
Nevertheless, the revealing legislative debates over HB 1888 made it quite clear that the legislation was nothing more than another special-interest attack on the PRA. The following are some of the highlights.
1. Throughout the debate on HB 1888, lawmakers failed to cite a single instance of public employees being targeted or harmed because their date of birth had been disclosed under the PRA.
One case that was cited often by HB 1888 supporters involved Martin Pang, the arsonist imprisoned for starting a 1995 fire that killed four Seattle firefighters. Rep. Zack Hudgins (D-Tukwila) claimed on the House floor that Pang, “…tried to use public records laws to get Social Security numbers and birthdates” of the firefighters who testified against him at trial. In reality, while Pang successfully obtained the information, it came from the documents in his own court file, not from a PRA request. Not only was Pang foiled in his effort to perpetrate identity theft, but state laws were subsequently updated to prevent the release of Social Security numbers.
As Rep. Drew Stokesbary (R-Auburn) pointed out,
“We don’t want to create a system where state employees are subject to identity theft because they’re state employees. We certainly don’t want to create a situation where they really are in danger. But … we have yet to see any evidence that disclosure of employees’ date of birth is actually leading to any dangerous situations…”
The Freedom Foundation made this point repeatedly as well. And the fact that the name, birthdate and address of any public employee registered to vote will remain publicly available undercuts any claims made by HB 1888’s proponents that the bill would protect employees.
2. In both the House and Senate, legislators introduced amendments to HB 1888 to strengthen the bill’s privacy protections by limiting the release of certain public employee information to labor unions.
Because the PRA establishes the public’s right to access government records, when a type of record is exempted from the PRA, it just means the government is not obligated to disclose it; it doesn’t mean the government can’t choose to release the record if it wants.
Consequently, Rep. Mary Dye (R-Pomeroy) introduced an amendment to prohibit the release of public employees’ Social Security numbers to labor unions. Similarly, Rep. Luanne Van Werven (R-Lynden) and Sen. Shelly Short (R-Addy) introduced amendments to prohibit the release of employees’ dates of birth, personal phone numbers, personal email addresses and Social Security numbers to labor unions without employees’ written authorization.
Some lawmakers, such as Sen. Patty Kuderer (D-Bellevue) and Rep. Mia Gregerson (D-SeaTac) opposed the amendments by claiming they were unnecessary because unions can’t access public employees’ personal information.
While it is true that public employees’ personal contact information and Social Security numbers are exempt from the PRA, this doesn’t mean the information isn’t or can’t be released. In fact, the state currently provides — and, under HB 1888, will continue to provide — unions with vast amounts of personal information.
For example, Article 12.3 of AFSCME Council 28’s collective bargaining agreement covering language-access providers requires the state to provide the union with providers’ names, home addresses, personal emails and personal phone numbers.
Similarly, Article 4.4 of the collective bargaining agreement between the state and SEIU 925 covering family childcare providers requires the state to give the union providers’ names, addresses, personal phone numbers and emails, and even racial and ethnic identities.
Most egregiously, Article 5 of SEIU 775’s collective bargaining agreement requires the state to provide the union with employees names, personal phone numbers and emails, dates of birth, Social Security numbers, marital status and primary languages.
And yet, even though unions are the only entities that can access public employees’ personal information, lawmakers like Rep. Gregerson opposed giving public employees control over the release of their information to unions because, in her words, “I don’t want to just target unions. That doesn’t seem like a good way to legislate.”
3. Doug Ericksen (R-Ferndale) introduced an amendment requiring government agencies to distribute written informational material to their employees about legal and civil rights, provided a nonprofit produced the material and paid for its distribution.
Because his amendment provided a mechanism for groups like the Freedom Foundation to continue to communicate with employees while, at the same time, protecting employee information from disclosure, Sen. Ericksen argued that, “Not adopting this amendment says you want to deny that public employee access to information about their God-given, constitutional rights…”
Sen. Kuderer led the opposition to the amendment, arguing that, “We are running a government, not a mail service for a nonprofit organization.”
The problem with this argument is that government employers can and regularly do distribute information to employees on behalf of labor unions, which happen to be “nonprofit organizations.”
State law requires government employers to subject new hires to 30-minute meetings with union organizers. Unions often have access to work bulletin boards, the employer’s email system, and/or employee work mailboxes. Article 2.7 of the state’s collective bargaining agreement with SEIU 775 even requires the state to include union materials in pay envelopes mailed to employees.
These debates, coupled with the rejection of these sensible amendments, confirm what everyone following the issue already knew to be true: HB 1888 was never about protecting employees from identity theft or harassment. Rather, its only purpose is to limit the Freedom Foundation’s ability to communicate with public employees while preserving unions’ unchallenged access to employees’ personal information.
Lawmakers’ willingness to undermine the Public Records Act — a foundation of good governance in Washington — at the behest of a politically influential special interest group sends a clear message that the public shouldn’t rely on politicians to preserve Washington’s open government heritage.