January 26, 2008

In the January 26, 2008 edition of the Seattle Times, reporter Yu Nakayama’s article, Bill aims to protect privacy of police officers, identifies me "as the lawyer who drafted the bill."

Though flattering, I am not the person who actually drafted the bill. Back in September 2007 I sent a detailed proposal to Representative Bill Hinkle explaining why (in my opinion) legislation was desperately needed to protect peace officer, and asking for his assistance. Rep. Hinkle's support on this incredibly important safety issue was instantaneous. I was also accorded the honor of proofreading draft versions of the bill and was encouraged to comment on the content of the draft versions. I'd like to think that I was one of the catalysts behind this bill, but I was definitely not the only person involved!

Additionally, I keep hearing that there is no evidence that our unbelievably broad public disclosure policies (that allow criminals to request and receive the full names, dates of birth, and photographs of every single police officer in this state) has endangered any Washington police officer.

So. Assuming this is correct (which would not be a very wise assumption given that we have a vested interest in keeping such information from being widely broadcasted), is it really necessary for us to wait for body bags before we can take action to protect our protectors?

Is it really too difficult to comprehend the fact that if we continue disseminating hit lists of our peace officer to absolutely anyone who requests them that, sooner rather than later, that information will be used to target our peace officers and their families?

Think back to 9/11 for a moment. Remember the police officers and firefighters who ran toward the towers - even as everyone else was running away from the towers? How many lives were saved as a direct result of the sacrifices of those incredibly brave and selfless men and women? What could the result have been if a secondary group of terrorists had been given the full names, dates of birth, photographs and home addresses of the police and firefighters in the days before the attack of 9/11 and instructed to attack the protectors and their families. What would that kind of attack have done to the ability of those professionals to respond to any crisis?

Remember that Washington State (particularly our ferry system) has been identified by the FBI as a terrorist target. Our ferry system was under surveillence as recently as last summer. The safety of our commissioned peace officers serves the interest of every law abiding person in this state. These men and women literally stand between us and those who would do us harm. What interest does it serve to them or to us to continue to serve them up on a silver platter? Because the media wants to continue to receive every scrap of information? They'd be just as happy to report on a mass casualty situation.

When Washington police officers from the state, county or city levels are attacked as a result of our public disclosure policy, our representatives will rush to pass and our governor will rush to sign a law to protect them. Do we really need to fill body bags before this can be accomplished? Why don't we close the barn door BEFORE the horse runs out?

KGS

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January 22, 2008

Given that it appears Representative Lynn Kessler does not intend to give HB 2490 a hearing, I drafted and mailed a letter asking (begging) for a compromise that would receive a hearing. In the compromise, no new information would be exempt from disclosure but general rosters could not be disseminated pursuant to a single public disclosure request. (Please remember, a "hearing" does not mean the bill would pass. But a hearing would allow the other representatives to vote on the subject . . . which is certainly the more democratic option than simply refusing to allow the bill to even go to a vote.

I also drafted and mailed a proposal letter to Senator Holmquist for her support.

KGS

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January 21, 2008

Since reading about his views in the January 20, 2008 edition of the Yakima Herald, I have been in contact with Toby Nixon, president of the Washington Coalition for Open Government. We’ve taken some shots at one another. (I’ve taken umbrage at his "Secret Police Bill of 2008" designation and he is of the opinion that I drafted a poor bill and am now misrepresenting the bill to the point of being dishonest about it.)

Now, in all fairness, I have to note that my opinion of Mr. Nixon based on what I have observed of him through his efforts in front of the Sunshine Committee is that he is generally an intelligent and thoughtful individual with a biting sense of humor. He is also held in high regard by a number of people I respect and admire. Without question, he has far more knowledge and expertise with regard to the Public Records Act so if he says there are problems with this bill, then I will concede that there are problems with the current draft of this bill. (Though I believe it is possible that those problems are more about perception.) I vehemently disagree with his categorization that this is a "Secret Police Bill."

Mr. Nixon is mistaken in his statement that I drafted HB 2490 (and frankly, he knows full good and well that no private citizen drafts a bill). I submitted a proposal to request legislation that would protect the protectors of Washington State. I was subsequently asked to proofread drafts of the bill and make comments, changes, etc. While I most certainly did contribute to HB 2490 (specifically to subsection b), most of the language Mr. Nixon complained of was not the results of my efforts. Because I did not ask for those items, I don’t know what the specific intent motivating the inclusion entailed. I will offer MY analysis of those points but this will only be the analysis of a person who knew absolutely nothing about the Washington Public Records Act prior to September 2007!

I am of the impression that problems and concerns with any and all aspects of a bill are addressed during the hearing process. Hopefully an acceptable compromise can be achieved during that process. Though this is the first time I have been personally involved in any legislative effort, it is my understanding that virtually any bill goes through a number of revisions before it has any hope of being passed into law.

Mr. Nixon advised me that the information contained in this website is misleading and noted that I have an obligation to correct this otherwise I risk losing credibility. Please be assured that it is NEVER my intention to be misleading about this bill or anything else. I encourage each and every person to read HB 2490 carefully and identify the problems personally. Then, come up with a good faith solution to the problem that will prevent the mass disseminations. My goal has always been directly in line with my September 2007 proposal: It is imperative to stop the release of general rosters of an agency’s law enforcement officers. It is important to stop the release of commissioned peace officer’s dates of birth. This is what I believe is vitally important to the safety and security of our officers, our state, and our nation.

My Analysis of HB 2490
(3) Personal information about a commissioned peace officer, the officer's family, or both; or information that could easily lead to the discovery of the personal information; and that is not necessary for the effective operation of a law enforcement agency.

The argument is that this section is too broad and too overreaching and would serve to eliminate the dissemination of any personal information about an officer. I don’t read it this way. Requesters would still be able to receive the name, year of birth, and photograph of any officer (just not in a general roster format). What other personal information SHOULD be disseminated about peace officers? Do you want their marital status? Number of dependents? Age of dependents? Description of their personal vehicles? How on earth is disseminating personal information related to providing "full access to information concerning the conduct of government on every level as a fundamental and necessary precondition to the sound governance of a free society"?

"Personal information" is already exempted from disclosure under this Act. See, RCW 42.56.050 which states that personal privacy is invaded or violated if the disclosure about a person "(1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public." See also RCW 42.56.230 which also addresses personal information.

The inclusion of this section in this bill appears to be a redundancy. I don’t see it as giving peace officers any more protection than any other public employee.

(a) Such information includes, but is not limited to, residential addresses, residential telephone numbers, property and tax records, and commissioned peace officers' birth dates other than year of birth, as otherwise provided in this section.

Again, residential addresses and telephone numbers can’t be disseminated about ANY public employee, so this definitely does not give peace officers anything new. Mr. Nixon takes particular umbrage about the information involving property and tax records. My interpretation of this is quite different.

In the Yakima Herald article written by Jennifer Henrichsen, Mr. Nixon argues that "it would be difficult for mortgage companies and banks to verify property records of police officers because they wouldn't be able to access that information." Nixon also questioned how county clerks and county assessors could, from a practical standpoint, seal records on commissioned peace officers if the "details about the peace officers are confidential and cannot be accessed by these officials."

I did not include this exemption in my proposal, but I don’t see how this would be as much of an issue as Mr. Nixon argues. A mortgage company or bank would not be making a public records request to obtain this information. A mortgage company or bank would have the written authorization from the officer to acquire this information – the Public Records Act wouldn’t even be implicated.

I can’t speak to the issue concerning the sealing of records because, again, I did not include this point in my proposal but I will try to find out who did and what the reason for this type of exemption entails.

(b) The full name, year of birth, and photograph of individual commissioned peace officers shall be disclosed pursuant to specific requests for information about the individual officer, but the officer, the officer's immediate supervisor, or both, must be notified of the request and provided the name and city or county of the requester before it may be disseminated;

Ah...Now THIS is the section I did want and I did contribute to. The biggest protection given to peace officers is that their dates of birth are not being disclosed and their information (full names, years of birth, and photographs of all, most, or a significant number of an agency’s commissioned officers) can’t continue to be disseminated. Does this give special protections to peace officers that are not available to other public employees? Yes. Is special protection warranted? Absolutely. We have a vested interest in keeping our peace officers as safe as possible so they can continue to protect and serve our community. Disseminating hit lists of cops is NOT conducive to their (or our) continued safety!

Mr. Nixon identified a concern with regard to the portion of HB 2490 that states "the officer's immediate supervisor, or both, must be notified of the request and provided the name and city or county of the requester before it may be disseminated." He argues that the necessary result would be that a requestor would have to "prove" his or her identity before records could be released, but this most certainly is not the case. The plain language of the subsection does not include ANY requirement of identity verification, and nor should it. A person with hostile intent and more than a handful of IQ points could just as easily pay an acquaintance to make the request on his/her behalf. That’s not the point of the notification. If an officer is threatened in a particularly convincing manner by a suspect and two days later, the officer receives an email from his boss that a John Smith from Spokane County submitted a public records request about him, that officer will be able to decide for himself if he should take more safety precautions.

Will the notification process make officers safer? I hope so. But it also has another benefit. If a person with hostile intent does make a public records request with a false name or through a third party and that officer or the officer’s family comes to harm at the hands of the hostile, the prosecutor won’t have any difficulty proving criminal intent.

Dates of Birth
According to the Yakima Herald article: "If the Legislature were to close off personal information on commissioned officers -- specifically dates of birth -- it would make it more difficult to keep law enforcement accountable," said Rowland Thompson, executive director of Allied Daily Newspapers, a statewide organization that represents Washington's newspapers. "Problem officers move through department after department. The only way to verify who they are is by name and date of birth," Thompson said.
This is one of two standard responses to why the dissemination of DOBs is so "necessary." Either DOBs are the only way to "verify who they are" OR DOBs are so widely available that there is "simply no privacy interest left to protect." Which is it? Necessary for identification or so widely available it’s irrelevant that they are disseminated?

Can anyone else see the contradiction?

The simple fact is that any officer can be definitely identified through the last name, badge number, and year of birth. Period. If you want the exact date of birth, all you need is the full name and year of birth (both of which must be disseminated under this bill) of any person and computer access. (You don’t actually need the year of birth, but having a year of birth narrows the search dramatically. Think I’m kidding? If you are a Washington resident age 18 or older, send me your full name and year of birth to info@whowillprotecttheprotectors.com and I’ll see if I can find your DOB to email back to you.) The media doesn’t really NEED the exact dates of birth . . . it just makes their job significantly easier because they don’t have to take the time to actually dig up the information. I can’t blame the media for wanting everything handed to them on a silver platter – but don’t be fooled into thinking that withholding dates of birth will keep the media from tracking down and finding those "problem officers."

KGS

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