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April 13, 2021

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Seattle’s disclosure of police records lags as experts question legality of city’s practices, funding

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Want to see what’s in an accused cop’s personnel file, get a copy of the dashcam video of that traffic stop or maybe check out the police chief’s emails to the mayor?

Don’t hold your breath.

At a time when the Seattle Police Department (SPD) faces intense scrutiny, the public’s access to records that could shine a light on the agency’s inner workings is being throttled by delays.

Citing staffing shortages, workplace impacts caused by the coronavirus pandemic and “an extreme backlog” that now numbers more than 3,000 open requests, the department’s online public records portal for months has warned visitors of “estimated minimum response timelines … in excess of 6-12 months.”

The amount of time it takes to fulfill an SPD records request typically is less than that — about 51 days on average. Still, that’s nine days longer than what was typical for all of the city’s departments two years ago, the latest available data shows.

And for more complicated police records requests — say those seeking an officer’s body-worn video or asking for multiple categories of data — it can take months, even years, before the city coughs up all records. One recently closed request for police records related to a 2017 removal of a homeless encampment took more than three years to complete, according to the department.

The backlog has gotten so bad that SPD’s public disclosure unit increasingly is using a little-known city rule to justify limiting its staff from working on multiple requests made by a single person at the same time.

Once a requester’s submissions stacks up to five or more, the department employs the rule to stop responding to all of that person’s requests simultaneously. Instead, staff is instructed to group and process that person’s requests one at a time, leaving the rest to languish untouched, sometimes for months.

The department says the practice is allowed under state law, but some government transparency advocates contend it’s blatantly illegal. At least one other Washington municipality, the city of Everett, is being sued for doing the same thing.

Strain on resources

“I understand people’s frustrations,” said SPD legal adviser Becca Boatright, who oversees the public disclosure unit. “But what you’re witnessing is frankly the city’s failure to really provide the support we need to respond in a more timely fashion.”

The SPD public disclosure unit’s employees, seven full-time and one part-time, are handling 300 to 400 requests at a time and simply can’t keep pace with the unrelenting flood of requests to respond any faster, she said. A spike in requests related to last summer’s racial injustice protests pushed the total yearly number received by the department last year to a new high: 9,278.

Due to its backlog, SPD records officials said they group multiple requests from one person to ensure its staff aren’t spending more time on one person’s requests than those of anyone else.

“We can’t prioritize one requester over the other,” said Boatright, who contends the state’s Public Records Act allows agencies to adopt such rules to “prevent excessive interference” with an agency’s essential functions.

But when shown how the department is applying the rule, some open government advocates said it’s achieving exactly what SPD claims it’s supposed to prevent: violating the state records law’s provision that agencies “shall not distinguish among persons requesting records.”

Such “serialization” of multiple requests penalizes journalists, attorneys and others who frequently rely on records requests to scrutinize hidden government actions, they said.

“My belief is that it is calculated to punish and discourage requesters who are most persistent and try to get them to give up and withdraw requests,” said Toby Nixon, president of the nonprofit Washington Coalition for Open Government.

Seattle also appears to be failing to devote necessary resources to meet even basic compliance with the records law, said Kathy George, a lawyer who specializes in government transparency issues.

“If they’re not devoting enough resources, at a certain point, it seems clear that it’s an intentional backlog, they’re planning to have slow responses,” she said. “You can’t do that under the Public Records Act.”

The law demands public agencies provide the “fullest assistance” possible and to respond to requests “promptly.” Neither “an extreme backlog” nor “staffing shortages” fall among the exceptions allowed for delaying responses, George said.

Police Department officials said they’ve repeatedly asked the City Council for more resources in recent years. Instead, the department’s budget devoted to public records has slid from about $3.6 million in 2016 to $1.7 million last year, according to figures provided by Boatright.

At the same time, the workload only has increased, with the department handling more and more requests for labor-intensive video records and being tasked by the city to take on requests for the Office of Police Accountability, the department’s civilian-led watchdog.

Washington’s largest city lagged behind several smaller cities in spending on staff devoted primarily to handling records requests, according to the latest data collected by the Joint Legislative Audit Review Committee. The 2019 data shows Kirkland led all municipalities for staff spending at nearly $4 million — about 8 times more than the $506,000 that Seattle spent. Kent ($3.7 million), Vancouver ($2 million), Issaquah ($1.7 million) and Lynnwood ($917,000) also easily outspent Seattle.

The data also shows Seattle’s response times to requests were at least a month slower, than all of the cities that outspent it.

Last week, City Council President M. Lorena Gonzalez declined to comment about whether Seattle is investing enough in resources to comply with the public records act. At a meeting Tuesday, the council’s public safety committee is expected to discuss whether to shift two vacant administrative positions to help address the backlog.

Long-standing problem

The City Council is well aware of SPD’s laggard response to records requests.

In late November, all nine council members signed a letter of concern to Chief Adrian Diaz describing how the family of Herbert Hightower Jr., a man shot dead by Seattle police in 2004, had been met with “delay after delay” by SPD when trying to get public records about the shooting.

“It … is unacceptable to make a family wait months to release records about the death of their loved one,” the council’s letter said.

Diaz responded that the council’s concern “highlights an issue that SPD has flagged, repeatedly, for years, but to little avail.” The chief’s letter described the department’s expanding volume and complexities of requests without increases in resources.

Those problems have existed for years. A 2015 city audit found “significant gaps in resources and systems” that “hinder SPD’s ability to ensure accurate and timely responses, provide reasonable assurance of compliance with state law, and promote transparency and public trust.”

Among other things, the audit prompted the city to install its public records web portal and expand its open data program. In 2017, the city also instituted its “Multi-Departmental Administrative Rule,” which includes the provision for grouping multiple requests from a single person.

But since the audit, staffing devoted to handling police requests has fallen from 11 full-time employees in 2016 to 7.5 last year, while requests have steadily climbed by about 10% annually year over year.

Attorney Michele Earl-Hubbard, who specializes in open government issues, said the public records law’s demand for agencies to give their “fullest assistance” to requests is meant for them “to be helpful. Not to erect barriers or cause delay or to behave inefficiently and bureaucratically.”

“SPD’s current staffing levels does not sound like “fullest assistance” to me,” she added.

The Police Department receives more than half of all requests citywide, but other city departments aren’t immune to sluggish response times.

A request to the mayor’s office on July 13 for emails and other internal messages about two fatal shootings in June within the so-called “Capitol Hill Organized Protest” zone took five months and 23 days to garner a first installment of records. The mayor’s office estimated a next batch of records won’t come until March 30 — some 8 1/2 months after the request was made.

Requests to SPD typically take even longer.

Seattle Times records requests made six months ago, eight months ago and two years ago are still pending, among others.

Disciplinary records sought for a recently reassigned high-ranking officer last January would be grouped with the rest of the same reporter’s open requests, the department said.

From now on, staff would focus on just one request at a time, the notice said. “All other grouped [requests] will be pushed out until 12/30/2021,” it said.

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